Legal News

Banco Santander, SA v JAC and MCPR ( Case C-410/20) The Court of Justice of the European Union ( CJEU) has issued its ruling in Banco Santander, SA v JAC and MCPR ( Case C-410/20). That decision stems from a request for a preliminary reference addressing, among other points, how to interpret the EU Bank Recovery and Resolution Directive 2014/59/ EU ( EU BRRD). The reference arose from a dispute between investors in Banco Popular Español SA ( Banco Popular) and Banco Santander SA, which had succeeded to Banco Popular, concerning Santander’s potential liability for inaccuracies in the Banco Popular prospectus prepared under the Prospectus Directive 2003/71/ EC, on the strength of which those investors acquired Banco Popular shares. The CJEU determined that investors in Banco Popular are barred from bringing proceedings for liability against Banco Santander under Article 6 of the...

EU Law analysis: On 7 April 2022, the Court of Justice issued its ruling in Fuhrmann-2- Gmb H v B, specifically examining the phrasing of the order confirmation control on the travel website booking.com in question......

DM v CTS Eventim AG & Co KGa A Case C‑96/21 What are the practical implications of this case? The ruling makes clear that customers lack a withdrawal right from agreements for cultural or sporting events fixed for a specific date where attendance is limited, irrespective of whether they reserved directly or through a middleman. Note too that Directive 2011/83/ EU (the EU CRD) is being amended by Directive ( EU) 2019/2161, the EU Omnibus Directive, which applies from 28 May 2022; the European Commission has therefore revised its guidance, and that guidance aligns with this outcome. That guidance mirrors the decision and reinforces that approach for such events in the Commission's materials. Although an EU judgment, it remains pertinent to UK businesses, as UK courts may have regard to EU case law, and UK companies sell to consumers across the EEA. What was the...

Judgments in Joined Cases Azurair and others, Cases C-146/20, C-188/20, C-196/20 and C-270/20, Airhelp, Case C-263/20, and Corendon Airlines, Case C-395/20 What are the practical implications of these cases? These rulings carry two key practical consequences for operating carriers governed by Regulation ( EC) No 261/2004 (the Regulation): Airlines must scrutinise timetable alterations, not only where they plan to push departures back (i.e. a delay for the purposes of the Regulation) but also where they intend to set off more than one hour earlier than scheduled, so as to avoid exposure to cancellation compensation. Article 5 of Regulation ( EC) No 261/2004 sets out compensation for cancelled flights and requires payment unless passengers are actually told in advance (and receive that notice), which may prove expensive if overlooked. Carriers are likewise reminded to provide passengers with clear information on their...

Under the most recent draft prepared by Slovenia, which will steer legislative negotiations in the Council of the EU through the very end of this year, the remit is set to be expanded to also cover regional and local public authorities formally marked by national governments as critical, as any interruption to their operations or services could seriously affect public safety and security. The update to Directive ( EU) 2016/1148, the NIS Directive, tabled by the European Commission in December 2020 aims to harmonise national cybersecurity approaches, to foster the exchange of threat information between countries and to mandate a baseline of security obligations for companies whenever they fall......

What are the practical implications of these cases? These joined references give the Court of Justice another chance to examine how certain car makers have fitted engines with so‑called ‘defeat devices’. Such software and hardware alter readings for particular pollutants, making a vehicle seem to meet environmental thresholds far more frequently than it truly does. The Court has only lately clarified what amounts to a prohibited defeat device under Regulation ( EC) No 715/2007, and the present matters concern the application of that interpretation to highly sophisticated systems which curtail emissions‑control depending on the temperature and the altitude at which the car is operated. The Advocate General adopts a firm, purposive reading of the Regulation and underlines its role within the European Union’s broader aims and objectives of securing a high level of environmental protection, a key element of which is the...

Top System SA v Belgium Case C-13/20 What are the practical implications of this case? Practitioners already recognise that software licensing terms cannot bar decompilation where it is indispensable to obtain information needed to secure interoperability between computer programmes, provided the conditions in the relevant Software Directive are satisfied. Beyond this (limited) carve‑out, it was commonly thought that decompilation could be prohibited by a software licence (see the Opinion of AG Szpunar of 10 March 2021, point 82). Indeed, the Copyright, Designs & Patents Act 1988 ( CDPA 1988) states that copyright is not infringed when a programme is copied or altered, so long as those steps are necessary for the licensee’s lawful use and are not excluded by contract ( CDPA 1988, s 50C). In practice, software licences often expressly ban decompilation. Yet the Court of Justice held that...

Joined cases Vodafone Gmb H v Bundesrepublik Deutschland Case C-854/19; Verbraucherzentralen und Verbraucherverbände— Verbraucherzentrale Bundesverband e V v Vodafone Gmb H Case C-5/20; and Telekom Deutschland Gmb H v Bundesrepublik Deutschland Case C-34/20 What are the practical implications of this case? Zero tariff, or zero rating, has long been contentious because it deliberately favours some app providers, clashing with net neutrality principles—the idea that the internet should be open to everyone and free from unequal treatment. Under these offers, a customer buys a data bundle but can use specified apps without that usage counting against their allowance. In other words, usage of named services does not reduce the volume of data included in the plan. These carve‑outs are determined by the ISP. The ISP chooses which apps are exempt and, typically, these are those linked to particular partnerships. In the Telenor ruling last year, the Court of...

The Software Incubator Ltd v Computer Associates UK Ltd Case C‑410/19 What are the practical implications of this case? The Court of Justice has issued the most recent ruling in a protracted dispute first considered by the High Court in 2016, arising out of an agreement that was terminated in 2013. The case will now return to the Supreme Court which, pursuant to Articles 86 and 89 of the UK/ EU Withdrawal Agreement, is obliged to give effect to that judgment. Although the Supreme Court’s final position is still awaited, the decision is expected to carry major consequences for software resellers who, acting as commercial agents, may rely on the protections and remedies provided by the Commercial Agents Regulations, SI 1993/3053, irrespective of the format or medium through which software is supplied to customers. It is likewise important for principals that deploy...

Mincione v Gedi Gruppo Editoriale Sp A [2021] EWHC 2006 ( QB) What are the practical implications of this case? The ruling offers practical insight for practitioners on procedure and substance. On the procedural front, it intimates that a defendant may contest the court’s jurisdiction under CPR 11(1) in relation to only part of a claim, not merely the whole. Although, on a literal reading, CPR 11(1) does not appear to authorise such a partial challenge, the notes in Civil Procedure 2021 ( Volume 1) (the White Book) suggest—albeit without authority—that it can be done. Tipples J voiced reservations because of the wording of CPR 11(1), particularly when contrasted with a provision like CPR 24.2(a). Nevertheless, as the claimant did not take the point, the court proceeded on the footing that jurisdiction existed. The judgment also addresses timing. Where the...

According to the European Commission, the EU will table its proposal to overhaul the World Customs Organization ( WCO), recognised as the global forum......

‘ CV- Online Latvia’ SIA v ‘ Melons’ SIA Case C-762/19 What are the practical implications of this case? Across the EU, when a website or online database provides a search tool that automatically draws into its results information sourced from third-party databases, this will typically infringe database right. There can, however, be circumstances where the practice is lawful if it can be shown that using data from those third-party databases does not prejudice the maker’s investment—for instance, where the data is deployed in a wholly unrelated market that the maker neither foresaw nor competes in. Nonetheless, in most situations it will be necessary to obtain permission from the maker of any third-party databases employed to produce an aggregated search result. What was the background? A jobs website ( Melons) offered a search engine that queried several websites hosting job...

MLex: Deutsche Telekom, Orange, Vodafone and other telecoms firms and online platforms could confront updated EU regulations designed to safeguard privacy and security across communications networks, as EU officials attempt to resolve a long stalemate that has persisted for nearly four years......

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case? From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 ( TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National...

Remondis Gmb H v Abfallzweckverband Rhein- Mosel- Eifel Case C-429/19 ECLI: EU: C:2020:436 What are the practical implications of this case? The Court of Justice has persisted with a narrow reading of exemptions in the Public Procurement Directive ( Directive 2014/24/ EU) and took a purposive stance when construing a contract said to be exempt. The Court of Justice confirmed the degree of collaboration needed for reliance on the Hamburg exemption, insisting that cooperation must be genuinely set up or carried out to have effect. This maintains a strict view of derogations and emphasises demonstrable, substantive collaboration in practice. To rely on the exemption, contracting authorities should think carefully about how they frame, evidence, and deliver joint strategies and mutual advantages when entering a Hamburg-exempt arrangement. If they neglect this, and cannot show real collaboration in practice, disgruntled private sector operators...

Tim Sp A— Direzione e coordinamento Vivendi SA v Consip Sp A, Ministero dell’ Economia e delle Finanze Case C-395/18 What are the practical implications of this case? General implications This ruling is expected to trigger reconsideration of national procurement laws across EU Member States that impose automatic, rather than discretionary, exclusions. Under Article 57(4) of Directive 2014/24/ EU, contracting authorities may choose to bar tenderers shown to be unreliable—for example due to breaches of environmental or social duties, including accessibility rules for disabled persons ( Article 57(4)(a)). Member States may transpose these grounds with differing levels of rigour, provided the conditions align with general EU law (paras [33] and [34]). The Court of Justice delineated the scope of that discretion by confirming that Member States may require contracting authorities to exclude bidders for infringements of social and labour law committed by their nominated...

Jana Petruchová v FIBO Group Holdings Limited C-208/18 What are the practical implications of this case? The First Chamber has affirmed that the notion of 'consumer' in Articles 17–19 of Regulation ( EU) 1215/2012, Brussels I (recast), is broad enough to cover users of online trading platforms dealing with financial instruments. Such users, provided they are not acting in a professional role, may bring proceedings before their domestic courts, notwithstanding a contractual jurisdiction clause to the contrary. The Court of Justice’s decision not to narrow the concept of consumer means that even highly knowledgeable users or high-net-worth individuals are captured and may rely on the regime’s consumer safeguards, as long as they persuade the court they were not using the platform in the pursuit of their trade or profession. This applies regardless of wealth, trading expertise, or status. What was the...

Uber France SAS v Nabil Bensalem Case C–320/16 ECLI: EU: C:2018:221 What are the practical implications? This marked the second occasion on which the Court of Justice was invited to rule on the legal character of Uber’s offering under European law. The earlier reference, Asociación Profesional Élite Taxi v Uber Systems Spain SL, Case C‑434/15, went against Uber in December 2017, when the Court of Justice held that the service constituted transport and was therefore subject to Spanish national and local rules on transport. See Court of Justice declares that Uber is a transport service ( Asociación Profesional Élite Taxi v Uber Systems Spain, SL). The outcome in the present proceedings follows the Advocate General’s Opinion of 4 July 2017 and also confirms that Member States may, as a matter of criminal law, prohibit and penalise the unlawful provision of transport activities in...

Commercial analysis The e IDAS Regulation will replace the 1999 e Signature Directive and is scheduled to take effect across the EU on 1 July 2016...