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Monday, 20 April 2015

CJEU publishes its 2014 Report: more and more cases, fewer and fewer AG Opinions?

How many IP cases did the Court of Justice of the European Union (CJEU) -- to be intended this time as encompassing, amongst others, the Court of Justice and the General Court -- decide last year? How long does it take for the CJEU to decide a case? How many references for a preliminary ruling were made in 2014?

If you have been wondering all these things (as you most surely have), well, wonder no further.

The CJEU has in fact issued a provisional full version of its 2014 Report. Like previous editions, not only is the Report a synopsis of the work of the Court of Justice, the General Court and the Civil Service Tribunal, but also a source of yummy information for IP aficionados.

Among other things, it may be interesting to observe that, while in 2013 the Court of Justice decided 43 cases in the area of IP and industrial property (p 94), the figures were much higher in 2014, with a total of 69 cases (p 104) completed by means of a judgment, opinion or order involving a judicial determination. Overall, this is an increase of 60%, notes Merpel.

These look like busy times at the CJEU. As the CJEU President, Vassilious Skouris, observed indeed in his foreword (p 5) to the Report,

"A new record was achieved in 2014 with a total of 1691 cases brought before the three courts, that is to say, the highest number since the judicial system of the European Union was created. On the other hand, as 1685 cases were completed, the institution’s productivity was likewise the highest recorded in its history."

Does this increased activity also mean longer duration of the relevant proceedings?

Apparently not, as Mr Skouris made it clear that

"This increased productivity also had its counterpart in the duration of proceedings, which was reduced."

No time to waste:
a CJEU judge on his way to work
Taking for instance the case of references for a preliminary ruling, while the 2013 Report highlighted how the average duration of proceedings was 16.3 months (p 10), the 2014 Report states that it now takes just [oh well, whether this is a long time or not also depends on what Member State(s) you take as a term of reference ...] 15 months to have a decision (p 9).

Among the aspects that have contributed to reducing the duration of proceedings, the Report mentions "the possibility of giving judgment without an opinion of the advocate general" (p 9). This is allowed by Article 20(5) of the CJEU Statute, which states that:

"Where it considers that the case raises no new point of law, the Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General."

The latter has been indeed an increasingly frequent feature of IP references, notably in the area of copyright [on which see this Katpost]. Among recent references that were decided without the opinion of an Advocate General (AG) first (possibly because sooooo straightforward ...), it is sufficient to recall the topical and highly controversial cases on hyperlinking and the right of communication/making available to the public within Article 3 of the InfoSoc Directive [for the latest post on this seemingly never-ending saga, click here].

Overall in 2014 208 judgments were delivered without an AG Opinion (p 10).

As regards the distribution of cases between the various formations of the Court of Justice, it is worth observing that the Grand Chamber [composed of 13 judges: see Article 16(2) of the Statute] dealt with roughly 8.7% of cases, including the important reference from Belgium in Deckmyn seeking clarification as regards the notion of parody under Article 5(3)(k) of the InfoSoc Directive [see Katposts here and further here].

And, speaking of Deckmyn, the Report lists it together with other four decisions (pp 56-58), these being International Stem Cell Corporation [here, another decision of the Grand Chamber concerning the patentability of biotechnological inventions and the notion of 'human embryo', following the controversial 2011 decision in Brustle, here], Nintendo [Katposts here, another copyright case concerning protection of videogames and circumvention of technological protection measures], Telekabel [here, concerning the compatibility of blocking injunctions with EU copyright], and Apple [here, another case decided without an AG Opinon and concerning the possibility to register the design of a retail store as a trade mark]

*Obviously* speaking of an AG Opinion
According to the Report, these were the most important IP cases in the area of ‘approximation of laws’, meaning: references for a preliminary ruling.

And speaking of references, a new one has just made its way to the Court of Justice. It is Liffers, C-99/15, a reference from Spain concerning interpretation of Article 13(1) of the Enforcement Directive and calculation of damages in (copyright) infringement cases, notably:

"May Article 13(1) of [the Enforcement Directive] be interpreted as meaning that the party injured by an intellectual property infringement who claims damages for pecuniary loss based on the amount of royalties or fees that would be due if the infringer had requested authorisation to use the intellectual property right in question cannot also claim damages for the moral prejudice suffered?" [if you wish to comment on this case you may email the UK Intellectual Property Office at policy@ipo.gov.uk by 27 April 2015]

Overall what emerges from the Report is that the activity of the CJEU is not bound to diminish any time soon, and this is (at least) for the joy of all those with a particular fancy for EU IP cases …

3 comments:

Anonymous said...

Erm... suspect that you might have typed 59 into your calculator, not 69, when doing the sums.

43 cases in 2013, 69 in 2014 - that's a 60% increase, not 38%.

Data source: PDF page 104 of the 2014 report

Eleonora Rosati said...

Ops! Thanks for pointing that out

TreatyNotifier said...

"speaking of references"
the recent Dutch language IP related cases have numbers (but no translations yet)

C-174/15 Vereniging Openbare Bibliotheken (ebooks)

C-169/15 Montis/Goossens (benelux court of J. reviving of expired copyright; copyright term extension directive)

C-160/15 GS Media (Geenstijl vs Sanoma/Britt Dekker) re hyperlinking

Questions in Louboutin (trade/colour/shape mark?) have been proposed but not formally been asked

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