Case C-195/18 B.S. v Prokatura et al held mid-March, is great for the week-end. Serious stuff (excise duties and customs classification), but with a fun twist: does beer under excise duties and customs regulation require the beverage to be made with malt as an ingredient, or does it also include mixtures of beer with non-alcoholic beverages, as long as it has fermented? Put differently, may an alcoholic product obtained by fermentation of a wort produced from, inter alia, glucose syrup (yikes! yikes! and yikes again) and a small proportion of malt may be classified as ‘beer made from malt’?
The CJEU touches upon important issues: linguistic interpretation, WCO rules, etc. and finally decides that such a product can come under the ‘beer’ heading only on condition that its objective characteristics and properties correspond to those of beer (adding glucose syrup is not prohibited, other than of course under the only proper standard in this regard which is the Rheinheitsgebot (as amended)).
In this regard, the court holds, account must be taken more particularly of the organoleptic (meaning ‘involving the use of the sense organs’) characteristics of the product in question, which is an exercise the referring court must undertake. No tasting sessions at Kirchberg therefore.
Have a good week-end.
The ECJ held in Vapenik some time ago (December 2013) and interprets Article 6(1) d of the European Enforcement Order (EEO) Regulation, Regulation 805/2004. This allows the Court faced with an uncontested claim in a consumer contract, with the consumer as debtor, to attach an enforcement order to its judgment, only if that court is the court of the domicile of the consumer.
The Regulation does not further specify whether the creditor in this relationship has to be a ‘business person’ (sic) , acting in his commercial capacity, or whether relations between two persons, both acting in their ‘consumer’ capacity, might suffice. The long and the short of this discussion is that the EEO Regulation does not include the paraphernalia for ‘consumer contracts’ which both the Brussels I and the Rome I Regulation do include. (And which have been the subject of extensive case law – see tag ‘consumer’ on this blog). The ECJ justifiably refers to the need to interpret the EEO and the Brussels I Regulation coherently on this point. Justifiably: for both the Brussels I-Regulation and the EEO Regulation concern the same stage of conflict of laws: enforcement (with in the case of Brussels-I jurisdiction thrown in precisely to assist enforcement).
I disagree though with the Court’s reference to substantive European consumer law, in particular the Directive on unfair terms in consumer contracts. Not because it is particularly harmful in the case at issue. Rather because I do not think conflict of laws should be too polluted with substantive law considerations. (See also my approval of Kainz). Do note that the ‘commercial’ nature of the counterparty to the contract, on which the ECJ ruled in Vapenik, is but one of many complications in consumer contracts under the Brussels I-Regulation. Further need for clarification therefore must not be ruled out (although national courts could take a lead from Vapenik and apply the Brussels I case-law mutatis mutandis).
After its withholding of mere accessibility of a site as a jurisdictional trigger for copyright infringement in Pinckney, the ECJ has now accepted that the mere acquisition of a good by a person domiciled in an EU Member State, suffices to trigger the application of the EU Customs Regulation’s provisions on counterfeit and pirated goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State.
In Case C-98/13 Martin Blomqvist v Rolex Mr Blomqvist, a resident of Denmark, ordered a watch described as a Rolex from a Chinese on-line shop. The order was placed and paid for through the English website of the seller. The seller sent the watch from Hong Kong by post. The parcel was inspected by the customs authorities on arrival in Denmark. They suspended the customs clearance of the watch, suspecting that it was a counterfeit version of the original Rolex watch and that there had been a breach of copyright over the model concerned. In accordance with the procedure laid down by the customs regulation, Rolex then requested the continued suspension of customs clearance, having established that the watch was in fact counterfeit, and asked Mr Blomqvist to consent to the destruction of the watch by the customs authorities. Mr Blomqvist refused to consent to the destruction of the watch, contending that he had purchased it legally. Is there in the present case any distribution to the public, within the meaning of the copyright directive, and any use in the course of trade, within the meaning of the trade mark directive and the trade mark regulation?
The ECJ re-iterated earlier case-law (in particular L’Oreal /E-bay) that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in the EU. However proof that the goods are intended to be put on sale in the European Union, is being provided, inter alia, where it turns out that the goods have been sold to a customer in the European Union, such as clearly in the case at issue.
That sales to the EU have taken place is enough. Proof that EU consumers were actually targeted is not required – at least not with a view to triggering intellectual property protection (cf consumer protection under i.a. the jurisdiction Regulation).
In the view of the EU of course this is not an ‘extraterritorial’ application of EU law: the territorial link is firmly established through the customer’s domicile.