Amicus briefs and consultation in CJEU cases: a constructive comment

Somewhere beyond Europe there
is a parallel civilisation in which
consultations and comments are
handled rather better ...

Returning to the subject of impossibly short periods within which interested IP folk can respond to calls for comments by the UK Intellectual Property Office on cases coming before the Court of Justice of the European Union (CJEU), the IPKat is delighted to receive the following very sensitive and constructive criticism of the present system by his wise old friend Richard Ashmead:

As an aside to the IPKat’s 18 October comments on amicus briefs, some related thoughts on Member State observations to the CJEU may be of interest. These can, and perhaps should, have the flavour of an amicus brief but seem not to be greatly used in trade mark matters coming before the CJEU.  

Articles 23 and 40 of the Statute of the Court of Justice invite the Commission, the Member States and certain institutions, bodies, offices or agencies of the Union to file written observations in reference cases, and to make interventions in appeals in much the same way. Such observations can play an important in enabling the CJEU to harmonise EU law by its preliminary reference cases, and appeals can of course raise legal issues of importance too. The point, particularly for references, is that the Member States have an opportunity to make their views on the reference questions known to the Court, including what they think the Court’s answers to the reference questions should be.

The confidentiality applied by the Court of Justice to papers before it does not make it easy (this is rather an understatement) to find out which Member States have intervened or filed observations in pending cases. AG opinions, Court judgments and orders, though, do usually indicate which Member States have intervened or filed observations, although they rarely reveal what they have each said.

While preparing earlier this year for a paper for the ECTA Conference in Palermo I ran through the CURIA list of reference cases indicated to have trade mark relevance and extracted the data for the table below:

Case	Document	Date	Name of parties	Observations and/or hearing attendances
C-9/93	Judgment	22/06/1994	IHT Internationale Heiztechnik	UK DE  EC
C-53/96	Judgment	16/06/1998	Hermès	NL FR UK EC
C-405/03	Judgment	18/10/2005	Class International	None
C-316/05	Judgment	14/12/2006	Nokia	FR EC
C-328/06	Judgment	22/11/2007	Nieto Nuño	FR IT EC
C-442/07	Judgment	09/12/2008	Verein Radetzky-Orden	IT EC
C-276/05	Judgment	22/12/2008	The Wellcome Foundation	GR PT EC
C-529/07	Judgment	11/06/2009	Chocoladefabriken Lindt & Sprüngli	CZ SE EC
C-302/08	Judgment	02/07/2009	Zino Davidoff	CZ IT PT EC
C-301/07	Judgment	06/10/2009	PAGO International	EC
C-236/08	Judgment	23/03/2010	Google France and Google	FR EC
C-127/09	Judgment	03/06/2010	Coty Prestige Lancaster Group	IT AT EC
C-235/09	Judgment	12/04/2011	DHL Express France	FR DE UK NL EC
C-324/09	Judgment	12/07/2011	L'Oréal and Others	UK FR IT PL PT EC
C-400/09	Judgment	28/07/2011	Orifarm and Others	CZ IT PT EC
C-307/10	Opinion	29/11/2011	The Chartered Institute of Patent Attorneys	UK CZ DK DE IE FR AT PL PT SL FI OHIM EC
C-190/10	Judgment	22/03/2012	GENESIS	ES IT GR EC

The Commission (“EC”) filed observations on all of the reference cases but one.  The rest filed observations as follows: 

* France & Italy: 7 cases each 

* UK & Portugal: 5 cases each 

* Czech Republic: 4 cases 

* Germany: 3 cases  

* Greece, Austria, Poland & Netherlands: 2 cases each 

* Sweden, Denmark, Ireland, Slovenia, Spain & Finland: 1 case each

Why so few Member State observations? Governmental resources (financial and other) may come into play, as could, I suppose, inter-governmental arrangements to avoid duplicative efforts, and there may well be views that particular reference questions do not reflect local concerns. Given too that the EC seems to have a policy to respond with formal observations to most reference cases there may be some Member State reliance that the EC will be dealing with them anyway. Mostly, I suspect that the two months set in the Court’s Statute is just not long enough for Members States’ governments to respond. 

I do not know whether this sort of pattern is repeated in other legal fields but I suspect that it may be, as the short term allowed is uniform. The UK approach is for the Court’s Article 23 notifications to go to the Treasury Solicitors’ Office, which sends IP cases to the UK IPO for comment. The UK IPO in turn sends the notifications on to the “interests” (including CIPA and, I think, the IPKat) in a round of consultation, but the communication route usually means that these interests receive word of the cases with no more than a few days to respond to UK IPO. 

That leaves me with some sympathy for Member States faced with a reference case (of which they may not have previously been aware), with only two months to decide whether the reference questions are important to them and, if so, to prepare a reasoned brief for the Court. If the Court wants member state input on what the shape of EU law should be, which I think it should, then it could perhaps try to find more time for Member States’ observations. The problem though will, I imagine, be in the ttatutory two months term and in the need to avoid changes which might compromise the hope of shorter overall proceedings. 

There is a way out of this two month trap for Member States, but not really an attractive one overall.  All the Member States have right to request, and appear at, a Court of Justice reference hearing, even if they have filed no observations. As an example neither Finland nor Ireland filed written observations in IP TRANSLATOR, but both chose to appear at the Grand Chamber hearing. The trouble with that though is that it enables Member States to put off a decision to file observations, possibly altogether, and that if they do chose to turn up at the hearing their views and arguments at the hearing will be news to the other Member States.

The reference system is considered, rightly, as cardinal to the Court’s role in moving towards harmonisation of EU law, but a mechanism to make it more likely that Member States make their views on the reference questions clear to the Court before a final hearing seems worth some effort, particularly in the light of an effective preclusion of amicus briefs.

Richard observes that these comments are made all the more relevant by the recent Kat-rant over the pathetically short time available for consultation in Actavis v Sanofi, a reference to the CJEU in which, this Kat believes, a good case could be made out for a more generous time allowance given the political and economic significance of the case's outcome. Richard, as well as this Kat when in non-ranting mode, is willing to give up time to sit down with representatives of the relevant government departments in order to discuss ways of bringing about a more effective means of consultation.