“Copyright Controversy Continued” The European trilogue negotiators have agreed on a revised text for the Directive on Copyright and the Digital Single Market. The new draft is not yet publicly available from official sources but has in part been published by MEP Julia Reda. According to the published texts, the revised draft Directive contains new versions of the highly controversial Articles 11 (“link tax”) and 13 (“upload filters”). However, things are not yet set in stone. The final vote on the proposal is expected to take place at the end of March or during the course of April 2019. Click here for the draft versions of Articles 11 and 13, as published by Julia Reda: https://lnkd.in/eCNSY8t. And here for the European Parliament’s press release: https://lnkd.in/emA_zkb.
Austrian Supreme Court further clarifies jurisdiction under article 7(2) of Brussels Regulation (recast): Under article 7(2) of the Brussels Reg. (recast), a claim can be filed with the court of the place where the harmful event occurred or may occur. This means either the place where the loss occurs or the place of the event giving rise to the loss. In this case, an Austrian consumer was suing a Swiss company for damages after a failed investment in Brazilian timber, for which the Swiss company had advertised using Google Ads and which it had then organized. The Austrian Supreme Court was therefore to decide whether the use of Google Ads, and the possibility to read them in Austria, could be qualified as an event giving rise to a loss in Austria. The Supreme Court made clear that the use of Google Ads, if they are not misleading but only aimed at catching the attention of potential customers, is a mere preparatory act which is irrelevant for article 7(2) of the Brussels Regulation. The Supreme Court, however, affirmed the jurisdiction of Austrian courts on various other bases including the fact that the contracts for the investment were signed in Austria and payments were made from an Austrian bank account. Click here for more (German).
The Austrian Supreme Court confirmed that the special protection against termination of employment for pregnant employees applies irrespective of whether or not an “intact” pregnancy or a viable embryo are given. It is only decisive whether or not a fertilization has taken place. Thus, also employees suffering a miscarriage enjoy special protection against termination of their employment. The ruling (in German) can be found here.
Advocate General clarifies the validity of dispute resolution system of EU Free Trade Agreements under EU law. Advocate General Yves Bot released his opinion on Belgium’s request for the Court’s Opinion on this point. Accordingly, the CETA’s investor state dispute resolution system is compatible with EU law. According to Bot, the dispute resolution mechanism of CETA, which provides in Section F of Chapter 8 for the resolution of a dispute by a Tribunal and an Appellate Tribunal is not incompatible with EU law, despite the CJEU’s decision in Achmea. The distinction made by BOT between CETA and Achmea is based in particular on the fact that under CETA tribunal’s cannot order the modification or annulment of measures taken by a state affecting an investment but only the payment of damages. Second, according to Bot, the Tribunal is bound by the ECJ’s interpretation of EU law. Hence, the main concerns of the Court expressed in Achmea are not relevant for CETA. Whether Bot’s approach will be adopted by the Court will remain to be seen. His opinion can be reviewed here.
According to an ECJ ruling of earlier today, Austria’s statutory Good Friday provision, which grants a public holiday only to employees, who are members of certain evangelical Christian churches, constitutes a direct discrimination on grounds of religion. Pursuant to the ECJ, Austrian employers - under the current law - have to grant all employees, independent of their religion, a paid public holiday on Good Friday. It is to be awaited whether the law will be amended until the next Good Friday, which will be on the 19 April this year. The ruling can be found here (in German).
“On the Importance of Evidence”: The EUIPO has upheld an application by the Irish fast-food chain Supermac to revocate the EU trade mark (EUTM) “Big Mac”, arguing that McDonald’s, the proprietor of the EUTM, has not put it to genuine use during a continuous period of 5 years. McDonald’s submitted 3 affidavits signed by its representatives, advertising material, printouts from its European websites and a Wikipedia printout as evidence for genuine use. However, the EUIPO stated that “the evidence does not allow the conclusion, without resorting to probabilities and presumptions, that the mark was genuinely used”. The EUIPO inter alia noted that the evidentiary value of internet extracts can be strengthened by evidence that the specific website has been visited and, in particular, that orders for the relevant goods and services have been made through the website by a certain number of customers. It also held that McDonald’s failed to provide information on how the submitted advertising material was distributed and that Wikipedia entries cannot be considered as a reliable source of information, as they can be amended by Wikipedia’s users. McDonald’s can still appeal the decision, which you can read here.