Multilingual jurisprudence for a territory bigger than half a billion football fields

2019 | roadmap

An impressive building on the Kirchberg plateau in Luxembourg characterised by the colours gold and black is home to the Court of Justice of the European Union (CJEU), the sole judicial body of the EU, which ensures compliance with the treaties and secondary EU legislation (Art 19(1) TEU). It consists of two separate courts: the Court of Justice (ECJ) and the General Court (GC).

Whereas the ECJ is composed of one judge per Member State and 11 Advocates General, the GC will consist of two judges per Member State, by 1 September 2019. Every member of the CJEU is supported by its own cabinet consisting of assistants and référendaires (law clerks). In total, 537 employees work in the cabinets and another 1,500 are engaged in administrative services, including research and documentation, language service, IT support and the management of the vast Court library, which aims to acquire all legal publications in the field of EU law.

Multilingualism
The CJEU can be addressed in all 24 official languages and case law is disseminated in each of them throughout the EU. Overall, 44 % of the institution's staff work in the linguistic service: 609 lawyer linguists translate judgments and other documents (in total more than 1,1 million pages are translated per year), and 74 interpreters cover hearings and meetings to allow attendees to follow the arguments in their mother tongue. Internally, however, the CJEU sticks to one language, which is French. It is the common language used e.g. in deliberations and in the drafting of preliminary reports, judgments and orders.

Intellectual property before the CJEU
Seven hundred and twenty-seven new cases were brought to the ECJ in 2017. About 10 % of them were related to intellectual property (IP) and deal with industrial property (patents, trademarks, designs, etc.) and copyright. In the same year, the GC was confronted with 917 new cases, about a third (298) of which were IP cases. Basically, there are two ways IP cases get to the CJEU: preliminary references and actions against EUIPO decisions.

Preliminary references = a dialogue with national courts
Every national judge in the EU must apply EU law. If a court is unsure how a certain provision of EU law should be interpreted, it may or – as a last instance – must halt the national proceeding and refer its question to the ECJ by way of a preliminary reference (Art 267 TFEU). By its preliminary rulings, the ECJ clarifies the meaning of EU law and ensures that regulations and directives are interpreted and applied in the same way in all 28 Member States.

Take for example the Christian Louboutin case: The French shoe designer owning a registered trademark in the Benelux area consisting of the colour red applied to the sole of a high heel shoe became aware of a company that also distributed stilettos with red soles. He filed a trademark infringement action before the District Court of The Hague based on his Benelux trademark. In the national proceeding, the defendant claimed that Louboutin's trademark was invalid according to a provision of the EU Trademark Directive, transposed to national law, which excludes from trademark protection signs that consist exclusively of a shape that gives substantial value to the goods. The national District Court was unsure how the word "shape" is to be interpreted within the meaning of the Trademark Directive. Is the concept of "shape" limited to the three-dimensional properties of the goods, such as their contours, measurements and volume – or does it include other (non-three-dimensional) properties, such as colour? As this question was essential to decide the trademark infringement case, the national court referred it to the ECJ (case C-163/16).

Case arrived at the ECJ – whose turn is it?
Once a case has been lodged, it is assigned to a judge-rapporteur. In the written stage of the proceedings, the parties of the main proceedings, national authorities and EU institutions may submit written observations and propose answers to the questions posed in the preliminary reference within two months after notification on the request. After the conclusion of the written part of the procedure, the judge-rapporteur drafts a preliminary report. Based on this internal document, the 28 judges decide in their weekly Tuesday meeting which chamber will deal with the case. Depending on its importance and complexity, the case is assigned to a chamber of three, five or 15 judges; the chambers are not specialised in specific areas of law. The ECJ's general meeting also decides for each case whether an Advocate General will give an opinion on the case.

After the written stage, a public and oral hearing might take place, in which the case is heard by the respective chamber and, if appointed, the Advocate General. They all wear the same claret-red robes, but in order to demonstrate the impartiality and independence of the Advocate General, he leaves some space to the judges' bench. The parties are represented by their lawyers; Member States and institutions are represented by an agent who might be assisted by lawyers and advisors. Those pleading are obliged to wear gowns and must respect the speaking time assigned to them (generally 15 min). After the pleadings, the judges and the Advocate General might pose questions and finally every party has the opportunity to briefly reply to the observations. The hearing is simultaneously translated by interpreters seated in boxes around the court room.

Some weeks after the closing of the hearing, the Advocate General delivers his opinion on the case, providing a legal assessment of the case and proposing a response which is not binding for the judges, but serves as a basis for their deliberations. The judges' deliberations are secret. Thus, neither interpreters nor the Advocate General may assist. After several revisions of the draft judgment drawn up by the judge-rapporteur and discussions among the members of the competent chamber, a reasoned judgment or order is finally adopted and pronounced in open court. The average duration of preliminary ruling proceedings is just under 16 months.

Binding interpretation
The decision is not just binding for the court which referred the question to the ECJ. Every national court within the EU dealing with the same issue must apply the rule as interpreted by the ECJ. Therefore, the decision needs to be translated into all official languages. To ensure the quality of translation of legal documents, translators at the CJEU must not only have (thorough) knowledge of at least three official languages, but also hold a legal education qualification from a Member State. This explains why they are called "lawyer linguists".

Getting back to our example, one can read in 23 languages that a sign consisting of a colour applied to the sole of a high heel shoe does not consist exclusively of a "shape" within the meaning of the Trademark Directive.

What else?
Another competence of the CJEU is to review the lawfulness of decisions adopted by an institution, body, office or agency of the EU. Among other competences, the GC has jurisdiction in actions against decisions of the Boards of Appeal of the European Union Intellectual Property Office (EUIPO).

For example, a German film company applied for registration of the comedy film title "Fack Ju Göhte" as an EU trademark for various goods such as games and clothes. However, the EUIPO refused the application based on a provision of the EU Trademark Regulation that prohibits the registration of trademarks which infringe public policy or morality. The film company disagreed and brought an action against the EUIPO before the GC alleging an infringement of the EU Trademark Regulation (Case T-69/17). About 13 months later, the GC confirmed the EUIPO's decision and rejected the action with its judgment.

Decisions of the GC can be appealed on points of law before the ECJ within two months of the notification of the decision. Currently, an appeal regarding the trademark "Fack Ju Göhte" is pending before the ECJ (case C-240/18 P). Besides this appeal decision (with rather limited impact for practice in general), there are many other CJEU decisions to expect, in particular preliminary rulings, which will be significant for the development of EU law, in IP and beyond.

Conclusion
The CJEU's jurisdiction covers a broad field of legal topics, is the result of intellectual work influenced by a mixture of various legal systems and traditions, accessible in 24 languages, and applicable in a territory bigger than half a billion football fields.

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This article was up to date as at the date of going to publishing on 10 December 2018.