EU Law analysis: Hot on the heels of the Tiketa case, which dealt with the question of whether an online intermediary (ticketing platform) could be held jointly liable with the trader actually providing the service, the Court of Justice has ruled on cancellation rights and intermediaries in the context of cultural or sporting events. Article 9 of the EU Consumer Rights Directive (EU CRD) gives the consumer 14 days to withdraw from a distance or off-premises contract without giving any reason. However, exceptions apply, and ordinarily there is no general right to cancel bookings for cultural and sporting events under the EU CRD. The Court of Justice has now confirmed that this extends to bookings made via intermediaries, as long as the risks of cancellation would otherwise fall on the activity organiser. Written by Helen Hart, senior practice development lawyer, Lewis Silkin LLP.

TMT analysis: The Court of Justice has ruled that the electronic supply of computer software, licensed for an unlimited period in return for payment of a fee, constitutes a ‘sale’ of ‘goods’ within the meaning of the Commercial Agents Directive. This ruling relates to a referral from the Supreme Court in respect of an appeal against the Court of Appeal’s decision in Computer Associates UK Ltd v Software Incubator Ltd, which had determined that the electronic supply of software did not fall within the definition of a sale of goods for the purposes of the Commercial Agents (Council Directive) Regulations 1993 (the Commercial Agents Regulations).

Life Sciences analysis: In a reference from the Latvian Constitutional Court, the Court of Justice has held that ‘advertising’ as defined in Directive 2001/83/EC (the ‘Pharmaceutical Code’) includes the promotion of medicinal products even where promotion is of medicines generally rather than a specific (named) product. In addition, the Court of Justice held that Member States may impose prohibitions on advertising to the public beyond those set out in Article 90 of the Pharmaceutical Code. Specifically, restrictions on promoting medicines by reference to price, for example price promotions, discounts, or ‘bundled’ sales, are lawful. Such restrictions help prevent irrational use of medicinal products and in doing so help to safeguard public health, in line with the overarching aims of the Pharmaceutical Code. The case confirms the essential aim of the Pharmaceutical Code’s controls on advertising and sanctions Member States’ ability to extend the list of advertising controls in the Pharmaceutical Code through national laws where the aim is to safeguard public health. Written by Shuna Mason, partner and Fionnuala Rice, senior associate at CMS.

Life Sciences analysis: The Court of Justice landmark decision did not follow the Advocate General’s opinion but instead maintained the General Court’s ruling and dismissed the appeals in the related access to documents judgments. This upholds a string of judgments on third party access to documents maintaining that there is not a general presumption of confidentiality over documents containing clinical and preclinical data provided to the European Medicines Agency to support a marketing authorisation application. Certain commercially confidential information may be protected by exception if the interested party can show that the disclosure will cause it harm. The decision strengthens Regulation 1049/2001 (the Transparency Regulation) and prepares for the incoming new clinical trials regulatory regime.

IP analysis: The Court of Justice has confirmed that until Directive (EU) 2015/2436 came into force, the referential use exception only applied to situations where it was necessary to use a trade mark in order to indicate the intended purpose of a product or service. Under the current Directive, general referential use may be permissible. The case will now return to the national court, where Buongiorno will only be able to rely on a very specific exception if it is found to infringe the Zara trade mark. Written by Faye McConnell, senior associate at Browne Jacobson LLP.

EU Law analysis: On 7 April 2022, the Court of Justice delivered its judgment in Fuhrmann-2-GmbH v B which considers the wording of order confirmation button on the travel website booking.com. The ruling is an important one, given that the court took a particularly strict view of the obligation imposed on traders by the second subparagraph of Article 8(2) of Directive 2011/83/EU, the EU Consumer Rights Directive. Written by Kevin de Haan QC, barrister at Gough Square Chambers.

The Court of Justice of the European Union has elected the Presidents of the Chambers of five judges following a partial renewal of its membership. François Biltgen, Küllike Jürimäe, Constantinos Lycourgos, Irmantas Jarukaitis, and Maria Lourdes Arastey Sahún have been elected for a term of three years. In addition, Thomas von Danwitz was elected Vice-President of the Court of Justice, while Maciej Szpunar was re-elected the First Advocate-General (AG) of the Court of Justice. Both will be in role until 6 October 2027.

EU Law analysis: In its judgment dated 19 December 2024, the Court of Justice of the European Union addressed a question raised by the Italian Supreme Court of Cassation on the interpretation of the definition of the concept of ‘producer’ given by Directive 85/374/EEC (the Product Liability Directive (PLD)) and, in particular, regarding the meaning of the expression ‘by putting his name’ in paragraph 1 of Article 3 of the PLD. Specifically, the Italian Supreme Court sought to determine if the above-mentioned provision extends the producer’s liability to the supplier, even when the supplier has not physically placed its own name, trade mark, or other distinguishing feature on the product, solely because its name, trade mark, or distinguishing feature is wholly or partially the same as that of the producer. Mauro Teresi, Counsel at Simmons & Simmons LLP, discusses the judgment.

Life Sciences analysis: On 14 March 2024, the Court of Justice delivered its judgment in the appeal brought by Debrégeas et associés Pharma SAS (D&A Pharma) against the previous judgment of the General Court of the EU (‘the General Court’) rejecting its action against the European Commission’s decision to refuse a conditional marketing authorisation (CMA) for D&A Pharma’s medicinal product, Hopveus (sodium oxybate). The Court of Justice set aside the judgment of the General Court and annulled the decision of the Commission on the basis that certain scientific experts consulted by the European Medicines Agency (EMA) to advise in relation to D&A Pharma’s application for a CMA had conflicts of interest and failed to meet the requirement of impartiality, under Article 41 of the EU Charter of Fundamental Rights (‘the Charter’). The Court of Justice also held that the EMA had been incorrect to convene an ad hoc expert group to advise on the CMA application rather than to rely on an existing relevant Scientific Advisory Group (‘SAG’). Written by Adela Williams, partner, and Christopher Bates, senior associate, Arnold & Porter Kaye Scholer.

EU Law analysis: In these cases, the Court of Justice continued on its course taken in particular in its landmark decision to further curtail EU Member States' regulatory powers over online services. Most notably, the Court of Justice further buttresses that national measures derogating from the country of origin principle must not be directed at entire categories of services but at a given service. More specifically, the Court of Justice held that measures adopted by an Italian authority (AGCOM) requiring providers of online intermediation services (i) to be entered into a AGCOM register, (ii) to communicate to the AGCOM certain information on their ownership structure and administrative organisation and (iii) pay a financial contribution to the AGCOM's supervision, derogate from the country of origin principle since they are not laid down in the Member State of establishment (in this case Ireland and Luxembourg, respectively). The Court of Justice dismissed arguments that exceptions from the country of origin principle would apply, including the argument that the measure would be required for the purpose of consumer protection and enforcing Regulation (EU) 2019/1150, the EU P2B regulation. Written by Alexander Hofmann, associate at Baker McKenzie Vienna, and Mark Nemeth, junior associate at Baker McKenzie Vienna.

The Court of Justice has delivered its judgment in Case C‑21/22 (OP v Notariusz Justyna Gawlica) considering the interpretation of Articles 22 and 75 of Regulation (EU) No 650/2012 (the EU Succession Regulation). This concerned a Ukrainian national residing in Poland who was the co-owner of immovable property in Poland and sought to apply Ukrainian law to their succession.

EU Law: Ravi Srinivasan and Graham Lewis, partners, and James Egleton and James Smythies, associates, at J A Kemp discuss the decisions in Joined CasesTeva andMerck, relating to the criteria for assessing the availability of supplementary protection certificates (SPCs) for ‘fixed’ combination products.