Legal News

Audi AG v GQ, Case C‑334/22 What are the practical implications of this case? Producing replacement components that feature a recess intended for fitting an OEM trade mark badge can constitute trade mark infringement, within the EU, in certain circumstances. The ramifications for the spare parts sector are extensive, as it may stop them identifying goods by brand references and erode the notion that consumers deserve a choice between genuine and independent spares in an open, competitive internal market across all Member States. The ruling also seems at odds with the AG’s views in matters such as Louboutin ( Cases C‑148/21 and C‑184/21) and gives scant weight to forthcoming EU repair laws. It signals likely challenges in implementing new repair rules and the prospect of additional movements in jurisprudence and regulation once the Repair Directive comes into force in practice across the...

What are GPAI models? The EU Artificial Intelligence Act ( EU AI Act) primarily targets AI systems, especially those labelled high-risk. This stems from the EU’s risk-based methodology adopted by the EU. In its final form, the EU AI Act also expressly brings general purpose AI ( GPAI) models within the scope of regulation. Although AI models are vital building blocks of AI systems, they are not, by themselves, AI systems at all. In essence, a model comprises large collections of parameters—sometimes running into billions—that can be applied to input data to generate an output. To operate as an AI system, additional components are required, for example a software interface. Under the EU AI Act, GPAI models are described as models showing broad output generality and able to address a wide range of distinct tasks. Frequently, these models will often have been trained on large...

Delta Sport Handelskontor Gmb H v European Union Intellectual Property Office, T-537/22, ECLI- EU- T-2024–22 What are the practical implications of this case? Article 8(1) of Regulation ( EC) No 6/2002 states that Community design protection does not extend to shapes whose appearance is determined by technical function, nor to designs concerning interconnections. Such subject matter is intended for patent protection, which is time-bound and subject to pre-grant examination. Read together with Article 8(1), the court also examined Article 8(3) of Regulation ( EC) No 6/2002, which permits protection for designs of products that belong to a modular system, even where interconnection features are present. The ruling confirms that the modular systems exception applies even if a feature of the design is not solely the result of technical requirements. It further confirms that the onus to prove...

In this issue: Competition and state aid Corporate Data protection and cybersecurity Environment Financial services Free movement, immigration and employment Insurance and reinsurance IP Life sciences Regulatory TMT Daily and weekly news alerts New and updated content Trackers Competition and state aid DMA- Bytedance can’t pause Tik Tok’s EU ‘gatekeeper’ designation Law360 reports that a European court has dismissed Byte Dance’s bid to halt Tik Tok’s ‘gatekeeper’ designation, ahead of the March 2024 cut-off to meet fresh duties under the EU Digital Markets Act intended to expand user choice. See: Bytedance can’t pause Tik Tok’s EU ‘gatekeeper’ designation. DMA- European Commission closes investigations on Apple and Microsoft services The European Commission has taken decisions to end four market probes opened on 5 September 2023 under the EU DMA. It concluded that Apple and...

Court of Justice judgment C-667/21, Krankenversicherung Nordrhein What are the practical implications of this case? This ruling departs slightly from C‑456/22, Gemeinde Ummendorf, and C‑340/21, Natsionalna agentsia za prihodite, which confirmed that liability under Article 82 rests on showing an infringement, damage and a causal link. The present decision introduces a fourth element: the controller’s fault is presumed unless the controller proves that the event causing the damage cannot be attributed to them. The Court of Justice stated that this fault‑based approach (as opposed to strict liability) is supported by a contextual interpretation of the EU GDPR. In theory, this may narrow GDPR liability for companies that fall victim to cyberattacks. In practice, the threshold will be demanding, requiring organisations to demonstrate not only that they had suitable technical and organisational measures in place to prevent...

On 9 February 2024, Europe’s General Court refused Byte Dance’s bid for interim relief that would have paused its designation while a substantive appeal proceeds. Byte Dance was named among the initial six firms identified by the European Commission as ‘gatekeepers’ under the EU DMA, obliged to meet enhanced duties intended to expand user choice and freedom. The regime compels gatekeeper platforms to inter-operate with smaller services in specified situations, bars a platform from privileging its own offerings, and requires greater transparency for business users, among other requirements. Byte Dance contended that complying with the designation could expose ‘highly strategic information’, yet the court concluded the company had not demonstrated a concrete risk of disclosure or that it would suffer irreparable harm if the designation stays in effect during its pending challenge. As a result, the designation continues to apply while the merits are...

Per court records and filings, the video-sharing platform has initiated proceedings against the Commission at the EU’s lower-tier General Court, as records show. A company spokesperson confirmed the action concerns the fee it is obliged to pay under the EU DSA. ‘ We dispute the fee and are appealing on a number of grounds, including the reliance on defective third-party estimates of our monthly active user figures used to determine the overall amount,’ a Tik Tok spokesperson said......

In this issue: EU fundamentals Commercial Competition and state aid Data protection and cybersecurity Free movement, immigration and employment Energy Environment Financial services Corporate Insurance and reinsurance IP Life sciences TMT Daily and weekly news alerts New and updated content Trackers EU fundamentals European Commission unveils its Annual Union Work Programme 2024 The Commission has issued the 2024 Annual Union Work Programme on European Standardisation ( AUWP), setting out priorities across all standard-related activities. The High- Level Forum on European standardisation provided input and advice to the AUWP. The 2024 AUWP sets out 72 actions that support the EU’s policy aims for a digital, green and resilient Single Market. See: LNB News 06/02/2024 41. European Commission releases February 2024 infringements package The Commission has published its February 2024...

BMW Bank and others, Joined Cases C‑38/21, C‑47/21 and C‑232/21 What are the practical implications of this case? In these circumstances, a consumer’s scope to cancel a finance arrangement for leasing a vehicle (personal contract hire, PCH) appears more constrained than the right to withdraw from finance used to purchase a vehicle (personal contract purchase, PCP), in practice. It is also noteworthy to consider how the court might approach another widely used form of vehicle finance brokered through a dealership, namely PCP. Under that structure, the customer pays an initial upfront amount followed by a predetermined series of monthly instalments. A Guaranteed Future Value ( GFV)—ie an amount calculated from the estimated residual value of the car at the end of the agreement—is fixed from the outset when the contract begins. On expiry of the term, the consumer can either pay the ‘balloon’, ie the GFV, to...

Kopiosto ry v Telia Finland Oyj Case C-201/22 What are the practical implications of this case? The Court of Justice’s judgment materially shapes how CMOs pursue copyright enforcement across the EU. It makes clear that a CMO’s power to start infringement actions for rights holders is not an autonomous concept under EU law; instead, each Member State determines the position. A CMO’s ability will turn on: whether the Member State recognises the CMO as having a direct interest in the case; and whether the CMO enjoys standing either expressly under that State’s national law or under its general procedural rules. As a result, where some rights holders are covered by several CMOs operating in separate jurisdictions, the scope for those CMOs to bring proceedings on their behalf may differ from one country to another, depending on the forum and on whether the two conditions above are met. What was the...

Envoys for the EU’s national governments signed off on the final text of the legislation at a meeting today, according to a Belgian government spokesperson, whose office represents the EU governments in the talks. The agreement was 'unanimously confirmed', the spokesperson noted today. The approval follows weeks of intense speculation that France intended to assemble a coalition of countries to oppose it in the vote. France, together with Germany and Italy, had earlier flagged worries in the negotiations about rules for foundation models. However, Germany’s digital minister, Volker Wissing, said earlier this week he is now ready to accept the law after changes designed to protect small businesses. That choice by Germany made it markedly harder for France to block the law at the meeting held today. The law will be the first standalone AI statute, hailed widely by EU lawmakers as proof of the...

From 17 February 2024, providers of intermediary services—such as cloud and file‑sharing services, search engines, social networks and online marketplaces—come within scope of the EU Digital Services Act ( EU DSA). These organisations must meet a suite of duties, including putting in place notice‑and‑action procedures, observing detailed requirements for terms and conditions, and issuing transparency reports on content moderation, among other obligations and measures required under the framework. For further details on the EU DSA, please refer to our earlier blog posts here and here for context and background. The Commission, under powers granted by the EU DSA, may adopt delegated and implementing acts covering aspects of how the regime is implemented and enforced in this context. In 2023, it adopted one delegated act on supervisory fees payable by very large online platforms ( VLOPs) and very large online search engines (...

Industria de Diseño Textil SA ( Inditex) v Buongiorno Myalert SA , Case C-361/22 What are the practical implications of this case? The Court of Justice confirms that the exception operates as a broadly framed rule, despite the recurring and ambiguous wording ‘in particular’. The pertinent test is now whether the sign was used for identifying or referring to goods or services as those of the trade mark proprietor, so long as that use was in accordance with honest practices. A defendant may still invoke the earlier Gillette jurisprudence (see below), yet the court has underlined that the defence now has a wider reach than before. Claimants should closely assess the degree to which the challenged use aligns with ‘honest practices’, and weigh whether alternative causes of action—such as copyright infringement where a logo is deployed—might be more...

In this issue: EU fundamentals Competition and state aid Data protection and cybersecurity Energy Environment Insurance and reinsurance Financial services IP Life sciences Regulatory TMT International trade Lex Talk®EU Law: a Lexis®Nexis community Daily and weekly news alerts New and updated content Trackers EU fundamentals European Commission sends letters of notice to 26 Member States The European Commission has issued a package of infringement decisions due to certain Member States failing to inform Brussels of the measures taken to transpose specific Directives into national law. Formal letters have been dispatched to 26 Member States that have yet to notify complete transposition for 11 Directives covering, among other areas, the EU Emissions Trading System ( EU ETS), legal migration, protection of whistleblowers and credit services. Member States have two months to...

‘ A claimant under that provision must prove not just an infringement of that regulation, but also that the breach caused him tangible or non-pecuniary harm,’ the court stated. This conclusion arises from a reference to the EU judiciary by the district court in Hagen, Germany. It raised multiple queries and issues concerning the entitlement and scope to compensation for non-material harm—such as pain, distress or anxiety. Those questions centre primarily on whether an individual pursuing compensation for an EU GDPR breach must adduce proof of such harm in addition to evidence of the breach itself. The court further queried whether handing over a paper record to an unauthorised person is, by itself, sufficient to constitute an infringement of the EU GDPR. The German proceedings currently concern a disagreement about whether a Saturn electronics shop in Hagen contravened the EU GDPR when a member of...

In this issue: Competition and state aid Data protection and cybersecurity Environment Insurance and reinsurance Financial services IP Life Sciences TMT Daily and weekly news alerts Trackers New and updated content Competition and state aid Antitrust- Commission consults on commitments offered by Apple in Apple Pay abuse investigation The Commission has begun market testing of commitments proposed by Apple to resolve suspected dominance abuses linked to limiting access to the technology enabling in-store contactless payments on mobile devices. Refer to News Analysis: EU Competition law—daily round-up (19/01/2024). Antitrust- AG proposes Court of Justice should dismiss the Commission’s appeal in Intel Advocate General Medina delivered her opinion in Case C-240/22 Commission v Intel, which challenges the General Court’s judgment in Case T-286/09 RENV (following remittal from the Court of Justice) that partly set aside the...

The anticipated AI Act is in draft but already shaping contracts concerning the development and licensing of AI systems. It is now beyond doubt: the European Union’s artificial intelligence law, the EU AI Act, is on its way. Following news of a political deal in trilogue talks on 8 December 2023, the Act is expected to be adopted before the close of the current legislative term and the European elections in June 2024. While the precise provisions have not yet been finalised, drafts from the European Commission and the Council, together with details of the compromise shared by parliamentary figures, have surfaced—and the need to act is already pressing. The EU’s aim is to roll out fresh regulatory benchmarks for deploying AI systems, carefully balancing the benefits and risks of using AI across different fields. Alongside the broader EU AI Act, a...

After three days of negotiations, the text was updated to address delicate matters, including rules for AI foundation models—the technology behind popular chatbot Chat GPT—remote facial recognition, and any prohibited uses such as racial profiling. The AI Act largely sets duties for AI systems according to the degree of risk they pose to citizens’ health, safety and fundamental rights. Experts from EU governments will review the draft within the Working Party on Telecommunications and Information Society, a technical arm of the Council of the EU. Assuming no major alterations emerge, national ambassadors are expected to formally endorse the deal on 2 February 2024. The European Parliament committees overseeing the AI Act will then vote on the draft, before final approval by the parliament’s plenary in April. Foundation models The EU executive’s original 2021 AI Act proposal adopted a risk-based model, ensuring that...

Insurance Europe, Leaseurope, FIA, Figiefa and Clepa had anticipated the European Commission would table a data-access law by the close of 2023, yet the proposal has faced repeated hold-ups. The Commission’s internal vetting stage, the Regulatory Scrutiny Board, was still unfinished in late December 2023, with additional revisions on the horizon. The associations are pressing the Commission to move before the UN Economic Commission for Europe’s Regulation 155 takes effect on 7 July 2024. They fear it could undermine access to the on-board diagnostics port, or OBD, which remains the primary tool for most independent service providers. Richard Bullard, who chairs Leaseurope’s connected vehicle working group, warned at a Brussels press briefing that the regulatory cliff-edge is genuinely looming, and that, without action, independents will lose their sole route to the data on which they rely. He stressed that such access...

In this issue: Competition and state aid Data protection and cybersecurity Energy Environment Financial services Insurance and reinsurance IP Regulatory TMT Daily and weekly news alerts Trackers New and updated content Competition and state aid Antitrust— Advocate General recommends the Court of Justice uphold the fine imposed on Google for prioritising its own comparison shopping service Advocate General Kokott has delivered her opinion in P Google and Alphabet v Commission ( Google Shopping), Case C-48/22, an appeal against the General Court’s judgment in Case T-612/17 which partially upheld an action seeking annulment of the Commission’s 27 June 2017 decision in Google Search ( Shopping) ( AT.39740). She proposes that the Court of Justice dismiss the appeal in full and therefore maintain the €2.4bn penalty against Google. See News Analysis: EU Competition law—daily round-up (11/01/2024). Data protection and cybersecurity EU countries’ gazettes classed as data controllers even without choice over published content, EU court rules MLex: The EU’s highest court held that...