Copyright for football league fixture lists?

Here is a nice judgment of the Court for football fans. Have you ever wondered why English  Premier League match fixtures on the internet are made unavailable while other fixtures are? The reason is that the FA and Football Dataco think these fixture lists are protected by copyright. For some of us that does not seem to make any sense: especially on the continent copyright is a property right rewarded because of creativity, not managing an agenda (no matter how difficult and laborous that can be). Football Dataco and the FA thought otherwise, emphasizing the very significant labour and skill that went into creating match fixtures for football matches in England and Scotland.

The FA and Football Dataco  got into a legal battle with Yahoo and other companies over this. The Court of Appeal subsequently referred the case to the Court to ask whether article 3(1) of the Copyright Directive (Directive 96/9/EC) granted copyright to the creators of annual match fixtures. The Court answered that ‘no other criteria than that of the originality is to be applied to determine the eligibility of a database for copyright protection’:

41      Therefore, on the one hand, provided that the selection or arrangement of the data ­– namely, in a case such as the one in the main proceedings, data corresponding to the date, the time and the identity of teams relating to the different fixtures of the league concerned (see paragraph 26 of the present judgment) ­– is an original expression of the creativity of the author of the database, it is irrelevant for the purpose of assessing the eligibility of the database for the copyright protection provided for by Directive 96/9 whether or not that selection or arrangement includes ‘adding important significance’ to that data, as mentioned in section (b) of the referring court’s first question.

42      On the other hand, the fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill of its author, as mentioned in section (c) of that same question, cannot as such justify the protection of it by copyright under Directive 96/9, if that labour and that skill do not express any originality in the selection or arrangement of that data.

Consequently:

–        the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;

–        it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and

–        the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.

It is now up to the Court of Appeal to determine whether creating annual match fixtures is an original expression of the creativity of Football Dataco or not.

Primacy and the Czech Constitutional Court

Primacy, that is the precedence EU law takes over any national laws in cases of conflict, is one of the most fundamental aspects of EU law. The primacy doctrine elaborated in Costa/ENEL by the Court has not always been fully endorsed by various constitutional courts in the Member States (the Solange judgment of the Bundesverfassungsgericht is the most well known example). However, to date national courts have always applied the doctrine, albeit with reservations.

That has ended with a recent ruling by the Czech Constitutional Court. In a case concerning an alleged discrimanatory pension scheme in the Czech republic that resulted from the dissolvation of Czechoslovakia, it held that the Court in its judgment in Case C-399/09 Landtová acted ultra vires and subsequently gave Czech national law precedence over EU law. This is a quote from the press release of the Czech Constitutional Court:

In its judgement, the Constitutional Court first expressed its view on the conclusions following from the judgement of the Court of Justice of the EU. In the introduction, the Constitutional Court summarized its previous case-law concerning the relationship between national and European law and above all emphasised the thesis (which follows also from the doctrine of the Federal Constitutional Court of Germany) under which constitutional courts maintain their role of supreme guardians of constitutionality even in the realms of the EU and even against potential excesses on the side of EU bodies. In this respect, the Constitutional Court believes that a European regulation which governs co-ordination of pension system among the member states may not be applied to an entirely specific situation of a dissolution of the Czechoslovak federation and to consequences stemming thereof. The Constitutional Court wishes to emphasise that the period of employment for an employer based in the territory of today´s Slovak Republic cannot be considered a period of employment in abroad (besides, social security had been subject to federal competence in the entire period of existence of the Czechoslovak federation). Therefore, the Constitutional Court expressed the view that matters of social security and claims following from them did not in the case of so-called Slovak pensions contain a foreign element which is a prerequisite for the application of the co-ordination regulation. This issue cannot be compared to consideration of social security claims with respect to acknowledgement of periods obtained in different states, whilst it is the issue of consequences of dissolution of the Czechoslovak federation and of division of costs on social security between the successor states.

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Case C-467/10 Akyüz

The ECJ issued a fun judgment today on the mutual recognition of driving licenses in the EU.

The case involves one Mr. Akyüz, a German national who was denied a German driving license because his “strong aggressive tendencies” caused him to fail a required medico-psychological exam (para. 18).  Being a savvy gentleman (and perhaps familiar with EU law?), Mr. Akyüz went to the Czech Republic and acquired a Czech licence instead. When he returned to Germany and drove using his new Czech qualification, he was convicted by the German courts for two counts of driving without a license. Mr. Akyüz appealed his convictions, and the German court sent a preliminary reference to the ECJ to ask whether Directives 91/439 and 2006/126 “must be interpreted as precluding legislation of a host Member State which allows that State to refuse to recognise, within its territory, a driving licence issued in another Member State in the case where the holder of that licence … was refused a first driving licence in that State on the ground that he did not satisfy, under that State’s legislation, the physical and mental requirements for the safe driving of a motor vehicle” (para. 35).

The ECJ answered in the affirmative:

41. It is for the issuing Member State to investigate whether the minimum conditions imposed by European Union law, particularly those relating to residence and fitness to drive … have been satisfied and, therefore, whether the issuing of a driving licence is justified … .

42. Once the authorities of one Member State have issued a driving licence … the other Member States are not entitled to investigate whether the conditions for issue laid down by that directive have been met. The possession of a driving licence issued by one Member State has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions … .

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Untraceable consumers under Brussels I

Section 4 of the Brussels I Regulation (Regulation 44/2001/EC) contains special rules of jurisdiction over consumer contracts, generally designed to protect the weaker party (i.e. the consumer). According to Article 16 (2), the professional party may sue the consumer only in the courts of the Member State where the consumer is domiciled. Does this provision also apply to consumers who left their last known domicile and are simply nowhere to be found? Does the Brussels I Regulation preclude the use of provisions of national law which enable proceedings to be brought against persons of unknown address? These, essentially, were the questions referred to the Court in the case of mr Lindner (C-327/10). A Czech bank brought proceedings in the Czech republic against Lindner, a German national. It appeared Lindner had left his last known domicile in the Czech republic before the proceedings against him were brought. The Czech courts tried to track him down, to no avail. The court held:

55    – (…) in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union;

– that regulation does not preclude the application of a provision of national procedural law of a Member State which, with a view to avoiding situations of denial of justice, enables proceedings to be brought against, and in the absence of, a person whose domicile is unknown, if the court seised of the matter is satisfied, before giving a ruling in those proceedings, that all investigations required by the principles of diligence and good faith have been undertaken with a view to tracing the defendant.

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Commission requests opinion of the Court on ACTA

Today Commissioner Karel de Gucht announced that the Commission will request the opinion (pursuant article 218 (11) TFEU) of the Court on the compatibility of ACTA with the Treaties and the Charter of Fundamental Rights in particular. The Commisioner stated that

We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.

(…) But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day.

So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumour that has dominated social media sites and blogs in recent weeks.

As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.

More on ACTA can be found here, here and here.

The European Parliament on cross border transfer of company seat

In its Cartesio judgment (C-210/06) the Court ruled that “as Community law now stands, Articles 43 EC and 48 EC are to be interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst retaining its status as a company governed by the law of the Member State of incorporation.”

 The Court also stated that a Member State has the power to define the connecting factors to determine whether a company is incorporated under the law of that Member State. However this power “enjoys any form of immunity from the rules of the EC Treaty on freedom of establishment, cannot, in particular, justify the Member State of incorporation, by requiring the winding-up or liquidation of the company, in preventing that company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so”.

This judgment confirms the necessity of harmonizing the regimes of cross border transfer of company seat within the European Union, but it does not provide any clarification.

Considering the developments in the case law of the Court as well as the Stockholm Programme and its implementation, the European Parliament (EP) adopted a resolution on cross border transfer of company seat within the European Union on 2 February 2012. In the resolution, the EP requests the European Commission to swiftly submit a proposal for a directive on cross border transfer of company seat.

Access to information in environmental matters

Directive 2003/4, which implements the Aarhus Convention, gives citizens and businesses the right to access to environmental information in possession of public authorities without making it necessary for them to state reasons. The definition of public authorities is therefore quite important, as the Directive applies as soon as a body falls under that definition. In case C-204/09 Flachglas Torgau, the undertaking Flachglas Torgau sought information from Federal Ministry for the Environment about the conditions in which the Federal Office for the Environment in Germany had allocated emission allowences between 2005 and 2007. This was refused by the Federal Ministry for the Environment on grounds that it related to the legislative process which had resulted in the adoption of the Zuteilungsgesetz 2007. The Directive allows Member States to exclude bodies or institutions from the definition of public authorities ‘when acting in a judicial or legislative capacity.’ Because the requested information related to documents that were used in the process of adaptation of the Zuteilungsgesetz 2007, the Federal Ministry maintained that that it had acted in a legislative capacity and that therefore the Directive did not apply to it.

The Court agreed. It noted that although the Directive was intended to apply to administrative authorities, the purpose for excluding legislative authorities was ‘to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’.  According to the Court, ministries do not fall under the definition of public authority to the extent that they participate in the legislative process.

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Delimitation of jurisdiction in competition law

What happens to the allocation of respective competences of the Commission and national competition authorities in if an international cartel is implemented both in the EU and the Czech Republic before accession to the EU but action is taken after accession? A number of undertakings had formed a worldwide cartel on the market for gas insulated switchgear and those companies were fined by the Commission and the Czech competition authority. The Commission decision concerned the implementation of the cartel within the EU, while the Czech competition authority concerned the implementation of the cartel within the Czech Republic before accession. However, the decisions were dated after the date of accession of the Czech Republic and after the entry into force of Regulation 1/2003. Does this preclude the Czech competition authority from fining the undertakings in question for the implementation of the cartel in Czech territory? The Court does not think so. The Court first holds that

 the provisions of Article 81 EC and Article 3(1) of Regulation No 1/2003 must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects, in the territory of a Member State with acceded to the Union on 1 May 2004, during periods prior to that date.

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