European Enforcement Research Articles

Round-up of European enforcement case law 2023

Abstract In 2023, several noteworthy decisions relating to the enforcement of intellectual property rights (IPRs) were handed down, including in relation to anti-counterfeiting, parallel trade, litigation aspects and restrictions on the enforcement of IPRs. The decisions of the Court of Justice of the European Union and Supreme Courts and Courts of Appeals of the European Union Member States that the authors consider important are summarized in this contribution. The judgments were rendered between 1 January 2023 and 31 December 2023. As in previous editions, the authors have adopted a practical approach aimed at readers seeking an overview of the key IPR enforcement decisions of 2023.

Article: Quantification of Harm in EU Consumer Antitrust Actions for Damages

This paper analyses the development of private actions for damages as a significant pillar of private enforcement of EU competition law and discusses the quantification and estimation of harm. Since the adoption of the EU Directive 2014/104/EU on Antitrust Damages Actions, private enforcement in Europe has undergone crucial clarifications in the case law of EU courts, yet the critical issue of quantifying damages in private actions has only recently been addressed by the Court of Justice of the European Union (CJEU). This paper takes a closer look at the recent ruling in the Tráficos Manuel Ferrer case (C-312/21) and assesses the implications of that case law for private enforcement proceedings. Concerning the allocation of procedural costs, this judgment has established that injured parties may be required to bear a cost risk, even if they are partially successful. This finding needs further reflection in the context of consumer claims for damages, as it is susceptible to add an additional cost burden on plaintiffs. The second intricate finding concerns the relation between the ability of national courts to estimate damages and the exhaustion of evidence disclosure. Taking the example of Spain, the paper advocates for the specific inclusion of the principle of proportionality when determining harm in private actions for damages and especially in cases involving consumers or smaller harmed parties. EU, antitrust, cartels, private enforcement, consumers, damages, quantification, estimation, cost allocation, disclosure of evidence

Set-up and in-house validation of two multiplex event-specific PCR methods to simplify screening for GMOs without common screening elements

Since commercialization, the ever growing number of Genetically Modified (GM) crops make routine screening by European enforcement laboratories more expensive, labour-intensive and challenging every year. GM events, with elements for which no detection methods are available, further extend this screening because they require for event-specific methods to be included in the screening. Here, we describe the set-up and in-house validation of two tetraplex qPCR methods for simultaneous detection of six GM events that are not covered by common element-specific screening methods. The two qualitative multiplex PCR methods comprise previously developed and interlaboratory validated singleplex detection assays for GHB614 cotton, DP305423 soybean, CV127 soybean, DAS40278 maize, VCO1981 maize and 98140 maize. A plant-specific actin PCR was included in both multiplex PCR methods as a positive control. The validation data show that the assessed performance parameters are in accordance with the minimum performance requirements suggested by European Network of GMO Laboratories. The two multiplex PCR methods are reliable, ready to use and will lead to a faster and more efficient diagnostic routine GMO screening.

An Indonesian slimming drug with undeclared ingredients causing harm.

This paper reports the presence of undeclared drugs in the herbal slimming supplement Sulami®. The four cases of the adverse drug reactions related to Sulami® were reported to the Dutch Pharmacovigilance Centre (Lareb) or the Dutch Poisons Information Centre (DPIC). The analysis of all four collected samples revealed adulteration with sibutramine and canrenone. Both drugs can cause serious adverse drug reactions. From a legal point of view, it is clear that Sulami® does not meet the legal requirement for safety. As defined in the European General Food Law Regulation, food business operators are responsible for food safety. This also applies to online store owners who sell herbal preparations. Thus, it is clear that it is forbidden to sell Sulami® on the European and Dutch market. Collaboration between involved national authorities makes it possible to identify risky products. This allows the nationally responsible regulators to take targeted action. They can call on users to report sell points what makes it possible to arrest the sellers and confiscate the dangerous products. Beyond the national, also, the European enforcement organizations should take legal measures where possible, to protect public health. The Heads of Food Safety Agencies Working Group on Food Supplements "an Initiative on European level" is a good example of efforts to improve consumer safety.

Round-up of European enforcement case law in 2022

... Whilst new challenges awaited us in 2022, with the war in Ukraine raging on and the economic downturn and high inflation, practitioners are still and rightfully so continuing to focus on IP Rights (IPRs). The most recent report on IP-intensive industries has shown again how important IPRs are for the economy and for the job market.1 Specifically regarding hybrid working, hybrid conferences and new technologies continued to present challenges in 2022 and, as far as IP is concerned, a specific focus was on non-fungible tokens and the Metaverse. To be able to embrace the future with its continued challenges, learning from the past is a must and, with that, this article aspires to be a helpful guide. The authors start by summarizing the relevant Court of Justice of the European Union (CJEU) judgments interpreting the Enforcement Directive2 before moving on to CJEU decisions pertaining to substantive IPRs. Part 3 covers the relevant decisions of national courts.

Legal Regulations of Enforcement Procedure in Selected Foreign Jurisdictions

This article provides a brief comparative analysis of the peculiarities of the enforcement procedures in selected foreign countries and jurisdictions with various legal systems, including France, the United Kingdom, Belarus, Kazakhstan, the Baltic countries, as well as research into the organizational structure of their enforcement agencies. The article also provides an analysis of the diverse procedures applied in EU countries for enforcement of decisions of courts and other authorities in civil and commercial cases, including the European Enforcement Order, European Order for Payment, European Small Claims Procedure, as well as the procedure under the Recast Brussels I Regulation. The author’s objective is to consider the procedures of enforcement of Ukrainian court decisions in these countries, as well as to raise the issue of the possible application of these procedures in the relevant legislation of Ukraine and to provide material for further research and analysis of these options.

Consumer Antitrust Private Enforcement in Europe

Almost 6 years have passed since the end of the deadline to transpose the Antitrust Damages Directive.1 But the sun of private enforcement has not yet shone on consumers. The increasing number of business-to-business (B2B) follow-on litigation, in a large number of Member States (and with aggregation of claimants from various States in a given jurisdiction), shows that businesses are now pursuing in significant numbers and being successful in obtaining redress for antitrust infringements connected to relevant damages. The reform brought about by the Damages Directive is, thus, being successful when it comes to protecting injured businesses. Conversely, one fact suffices to conclude that the reform has been a failure when it comes to consumer protection: European consumers have never yet been compensated, in any meaningful number, for any anticompetitive infringement that caused them damage on a mass scale. And, in all but four (at most, 6) States, we are not even on our way to this outcome. This paper focuses exclusively on the consumer side of antitrust redress in Europe, where the picture that emerges is drastically different than if we look at competition law private enforcement as a whole.

The Use of Facial Recognition Technology by Law Enforcement in Europe: a Non-Orwellian Draft Proposal.

The European legal framework is not devoid of norms that are directly or indirectly applicable to facial recognition technology for identification purposes within law enforcement. However, these various norms, which have different targets and are from multiple sources, create a kind of legal patchwork that could undermine the lawful use of this technology in criminal investigations. This paper advocates the creation of a specific law on the use of facial recognition technology for identification in law enforcement, based on existing regulations, to specifically address the pressing issues arising in this domain. The ultimate aim is to allow its use under certain conditions and to protect the rights of the people involved, but also to provide law enforcement authorities with the necessary tools to combat serious crimes.

Round-up of European enforcement case law 2021

Round-up of European enforcement case law 2021

Gender equality and artificial intelligence in Europe. Addressing direct and indirect impacts of algorithms on gender-based discrimination

This article assesses whether current European law sufficiently captures gender-based biases and algorithmic discrimination in the context of artificial intelligence (AI) and provides a short analysis of a draft EU legislative proposal, the Artificial Intelligence Act. To this end, current trends and uses of algorithms with potential impacts on gender will be analysed through the lens of direct and indirect impacts for gender equality law, highlighting the implications for European gender equality enforcement. This article concludes that legislative and accompanying policy measures are necessary to ensure an effective gender equality policy and to avoid algorithmic discrimination.

European Small Claims Procedure in the realm of the other European proceedings

In this article, the European Small Claims Procedure will be analysed in the context of the other European procedures, namely Brussels I bis Regulation (Regulation (EU) No 1215/2012), European Enforcement Order Procedure, European Payment Order Procedure and Consumer ODR Procedure. The aim of each procedure, their benefits for users and drawbacks are compared in order to establish the areas in which the European Small Claims Procedure can be improved or modified contributing better towards the development of more efficient and user-friendly European Union civil proceedings system. Results of the SCAN | Small Claims Analysis Network consortium studies of the application of the ESCP are used as a basis of this article. The article among other issues will cover premises to introduce seamlessly integrated dispute resolution methods and tools in the European Small Claims procedure such as early-diagnostics, negotiations, mediation, etc. in order to create a pyramid-shaped dispute resolution system so that only the disputes that cannot be resolved by using other tools would be channeled to the adjudicative stage.

Google and Alibaba’s Different Stock Performances after Antitrust Investigations, the Reasons and Enlightenment

Platform monopoly has attracted wide attention from politicians and the public.. The European Commission has made unremitting efforts in platform antitrust enforcement in the last decade, but together with antitrust investigations, the stock prices of platform giants like Google and Facebook keep breaking their highest points. At the end of 2020, the Chinese government also started antitrust investigations towards platform companies like Alibaba. In contrast, the stock price of Alibaba crashed and lost more than half of its market value. By analyzing their CAR, we proved that the stock performance of Alibaba is significantly worse than Google after their most serious antitrust investigations. The difference reflects investors' different expectations of the European Commission and China's antitrust enforcement. A noteworthy problem then comes out: while the Chinese government is seriously strengthening platform antitrust and putting forward reforms in platform regulation, is there any authority that is able to effectively regulate the international platform giants and maximize the welfare of their users worldwide?

Consumer Antitrust Private Enforcement in Europe: As Complete a Survey as Possible (Extended Version)

Consumer Antitrust Private Enforcement in Europe: As Complete a Survey as Possible (Extended Version)

Comparative analysis of the legislative support for law enforcement agencies in the post-soviet space and Europe

The aim of the study was to determine the most effective model for regulating law enforcement in Europe and the post-Soviet space, as well as to formulate recommendations for the unification and standardization of legislation in this area. The empirical background was statistics on crime rates, premeditated murders by country; provisions of legislation governing the law enforcement activities of 13 countries and international regulations. Methods of system approach, descriptive statistics, descriptive analysis, generalization and prognosis, system selection, comparative method was used. The activities of law enforcement agencies are aimed at ensuring public order, national security and the protection of human rights, freedoms, and interests. Each state has its own law enforcement system, which is clearly regulated. The main indicator of the effectiveness of law enforcement is the crime rate and the level of security in the country. It is concluded that the most effective is the law enforcement model with its fundamental principles of decentralization of law enforcement agencies.

Dos pronunciamientos judiciales relacionados y decisivos para el avance del reconocimiento mutuo del Reglamento 805/2004: La sentencia del TC 26/2020, de 24 de febrero y el auto de la AP de Girona 243/2020, de 10 de junio

En este trabajo se analizan dos pronunciamientos judiciales, la STC 26/2020, de 24 de febrero y el Auto de la AP Girona 243/2020, de 10 de junio, que vienen a confirmar que solo puede certificarse como Título ejecutivo europeo una resolución dictada en rebeldía si, en el proceso de origen, se han cumplido las normas mínimas establecidas en el capítulo III del Reglamento 805/2004. La supresión de los controles de la resolución en el Estado miembro de ejecución debe estar inseparablemente vinculada a la existencia de una garantía suficiente de que se observen los derechos de la defensa. El órgano de la ejecución solo puede suspender la ejecución mientras se resuelve la impugnación en origen, como sucede en las resoluciones comentadas.

Mergers with Differentiated Products: Where Do We Stand?

On the occasion of the 10th anniversary of the 2010 U.S. Horizontal Merger Guidelines, this article provides an overview of the state of economic analysis of unilateral effects in mergers with differentiated products. Drawing on our experience with merger enforcement in Europe, we discuss both static and dynamic competition, with a special emphasis on the calibration of competitive effects. We also discuss the role of market shares and structural presumptions in differentiated product markets.

Selective Distribution in the Age of E-Commerce: An Overview of EU and National Developments

In recent years, the growth of e-commerce has significantly reshaped undertakings’ business and distribution strategies. Not only is the use of selective distribution on the rise, but manufacturers are also imposing more and novel types of restraints to control the conditions of retail. They are also increasingly competing with their distributors by selling the contract goods directly through their own online shops, and are using vertical restraints to regulate the emerging competition. The European courts and enforcement agencies are currently contending with how to assess these new restraints (e.g. bans on online selling and restrictions on the use of third-party platforms, search engines and online advertising) under legal principles that were developed in the 1970s for brick and mortar outlets. This contribution reviews key developments and questions currently occupying the European enforcement agencies and courts. It concludes that, while the European competition agencies have actively enforced Article 101 TFEU against selective distribution agreements in recent years, there is still a great deal of legal uncertainty on how to assess restraints that impede the distributors’ ability to sell and market the contract goods online. This has resulted in diverging approaches in different EU Member States. The current review of Regulation 330/2010 and its accompanying guidelines are a welcome and necessary opportunity for the Commission to provide more clarity and spell out more detailed and up-to-date guidance in the interest of a uniform application of EU competition law.

The Albanian Enforcement System

This article presents an overview of the Albanian legal system of enforcement in the civil and commercial area. Its purpose is not only to identify the enforcement system in Albania and the characteristics of each enforcement title but also to compare it with that of the Brussels IA Regulation. The article concludes that the Albanian enforcement system is built on the spirit of the European system and is very similar to several European countries. However, the range of foreign enforcement titles that can be recognized and enforced in Albania is narrower than that provided in the European Union countries. Therefore, it should be expanded to include, in addition to irreversible judgments, other European enforcement acts, such as European Payment Order, Settlement Agreements, Authentic instruments, etc.

European Competition Enforcement and the Digital Economy: The Birthplace of Precautionary Antitrust

In Section I of this paper, I examine the origins or seeds of precautionary antitrust by revisiting enforcement by European administrative competition agencies in digital markets. In Section II, I explain how this ideology was embraced, advocated, and advanced in several “tech reports” representing the blossoming of the precautionary principle. I conclude in Section III, by proposing the reinstatement and further development of tools that protect the legal and economic rationale of antitrust, as recognized by European courts.

The border is not the territory: the securitarian-humanitarian dialectic and the outsourcing of European borders

At the core of the European projects there is a fundamental tension between the securitarian and the humanitarian aspects of border and foreign policy, especially in its response to the Mediterranean Migration Crisis. This tension has far reaching consequences, from the outsourcing of border controls to third party states to fundamental changes in the makeup of the European Project. Starting from Etienne Balibar’s seminal question “what makes a border” I explore several facets of European border enforcement and the impact it is having on the European project.