Diageo Brands BV v Simiramida-04 EOOD.
Date: 2015-07-16
34. In that regard, it must be recalled that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular where it considers that it lacks sufficient information, where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (see judgment in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 27 and the case-law cited).
37. In addition, it should be borne in mind that, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. However, the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 29 and the case-law cited).
40. It should be noted at the outset that the principle of mutual trust between the Member States, which is of fundamental importance in EU law, requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, Opinion 2/13, EU:C:2014:2454, paragraph 191 and the case-law cited). As is stated in recital 16 in the preamble to Regulation No 44/2001, the rules of recognition and enforcement laid down by that regulation are based, precisely, on mutual trust in the administration of justice in the European Union. Such trust requires, inter alia, that judicial decisions delivered in one Member State should be recognised automatically in another Member State (see judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 45).
41. In that system, Article 34 of Regulation No 44/2001, which sets out the grounds on which the recognition of a judgment may be opposed, must be interpreted strictly, inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation. With regard, more specifically, to the public-policy clause in Article 34(1) of the regulation, it may be relied on only in exceptional cases (see judgment in Apostolides , C‑420/07, EU:C:2009:271, paragraph 55 and the case-law cited).
42. In accordance with the Court’s settled case-law, while the Member States in principle remain free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own national conceptions, what the requirements of their public policy are, the limits of that concept are a matter of interpretation of that regulation. Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from a court in another Member State (see judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 47 and the case-law cited).
43. In that connection, it should be observed that, by disallowing any review of a judgment delivered in another Member State as to its substance, Article 36 of Regulation No 44/2001 prohibits the court of the State in which recognition is sought from refusing to recognise that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which recognition is sought had it been seised of the dispute. Similarly, the court of the State in which recognition is sought may not review the accuracy of the findings of law or fact made by the court of the State of origin (see judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 48 and the case-law cited).
44. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 may therefore be envisaged only where recognition of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which recognition is sought, inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review of the substance of a judgment of another Member State to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order (see judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 49 and the case-law cited).
48. In that regard, it should be noted first of all that the fact that the alleged manifest error which was made by the court of the State of origin concerns, as in the case in the main proceedings, a rule of EU law, and not a rule of national law, does not alter the conditions for reliance upon the public-policy clause for the purpose of Article 34(1) of Regulation No 44/2001. It is for the national court to ensure with equal diligence the protection of rights established in national law and rights conferred by EU law (see, to that effect, judgment in Renault , C‑38/98, EU:C:2000:225, paragraph 32).
49. It must next be recalled that the court of the State in which recognition is sought may not, without challenging the aim of Regulation No 44/2001, refuse recognition of a judgment emanating from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment. On the contrary, it must be considered that, in such cases, the system of legal remedies established in every Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals (see, to that effect, judgment in Apostolides , C‑420/07, EU:C:2009:271, paragraph 60 and the case-law cited).
50. Consequently, the public-policy clause would apply only where that error of law means that the recognition of the judgment concerned in the State in which recognition is sought would result in the manifest breach of an essential rule of law in the EU legal order and therefore in the legal order of that Member State.
59. Next, it should be noted that the system established by Article 267 TFEU with a view to ensuring that EU law is interpreted uniformly throughout the Member States institutes direct cooperation between the Court of Justice and the national courts by means of a procedure completely independent of any initiative by the parties. The system of references for a preliminary ruling is thus based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether a reference is appropriate and necessary (see judgment in Kelly , C‑104/10, EU:C:2011:506, paragraphs 62 and 63 and the case-law cited).
63. In that respect, as was noted in paragraph 40 of this judgment, the rules on recognition and enforcement laid down by Regulation No 44/2001 are based on mutual trust in the administration of justice in the European Union. It is that trust which the Member States accord to one another’s legal systems and judicial institutions which permits the inference that, in the event of the misapplication of national law or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals (see paragraph 49 of this judgment).
64. It follows that Regulation No 44/2001 must be interpreted as being based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin. As the Advocate General has observed in point 64 of his Opinion, save where specific circumstances make it too difficult or impossible to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing a breach of public policy before it occurs. That rule is all the more justified where the alleged breach of public policy stems, as in the main proceedings, from an alleged infringement of EU law.
65. As regards the circumstances relied upon by Diageo Brands in the main proceedings in order to justify its failure to exercise the legal remedies available to it, it should be noted, in the first place, that it is apparent from the file that it cannot be excluded that, in its judgment of 11 January 2010, the Sofiyski gradski sad misapplied the interpretative decision adopted on 15 June 2009 by the Varhoven kasatsionen sad. However, if Diageo Brands had brought an appeal against that judgment, such an error, assuming that it was made, could have been corrected by the appeal court. In any event, Diageo Brands would have had the right, in case of doubt as to the merits of the legal ruling of the Varhoven kasatsionen sad, to refer to the Court a question of interpretation of the point of EU law concerned by that legal ruling (see, to that effect, judgment in Elchinov , C‑173/09, EU:C:2010:581, paragraph 27).
66. In the second place, if an appeal had then been brought before the Varhoven kasatsionen sad, that court, as a national court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU, would, in principle, have been required to make a reference to the Court of Justice if a doubt as to the interpretation of Directive 89/104 had arisen (see, to that effect, judgment in Köbler , C‑224/01, EU:C:2003:513, paragraph 35). An unjustified failure on the part of that court to fulfil that requirement would have resulted in rendering the Republic of Bulgaria liable in accordance with the rules established in this respect by the case-law of the Court of Justice (judgment in Köbler , C‑224/01, EU:C:2003:513, paragraphs 50 and 59).
71. As stated in recital 10 in the preamble thereto, the objective of Directive 2004/48 is to approximate the legislative systems of the Member States as regards the means of enforcing intellectual property rights so as to ensure a high, equivalent and homogeneous level of protection in the internal market.
73. The Court has held that the provisions of Directive 2004/48 are not intended to govern all aspects of intellectual property rights, but only those aspects inherent, first, in the enforcement of those rights and, secondly, in infringement of them, by requiring that there must be effective legal remedies designed to prevent, terminate or rectify any infringement of an existing intellectual property right (see judgment in ACI Adam BV and Others , C‑435/12, EU:C:2014:254, paragraph 61 and the case-law cited).
77. As regards Article 14 of Directive 2004/48, the Court has already held that that provision aims to strengthen the level of protection of intellectual property, by avoiding the situation in which an injured party is deterred from bringing legal proceedings in order to protect his rights (see judgment in Realchemie Nederland , C‑406/09, EU:C:2011:668, paragraph 48).