OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 3 March 2015 (1)
Case C‑681/13
Diageo Brands BV
v
Simiramida-04 EOOD
(Request for a preliminary ruling from
the Hoge Raad der Nederlanden (Netherlands))
(Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Recognition and enforcement of judgments — Grounds for refusal — Infringement of public policy in the State in which recognition is sought — Public policy in the European Union — Judgment on trade marks contrary to EU law given by a court in another Member State — Enforcement of intellectual property rights — Directive 2004/48/EC — Legal costs)
I – Introduction
1. In the present case, the Hoge Raad der Nederlanden (Netherlands) has referred to the Court for a preliminary ruling several questions primarily concerning the interpretation of Article 34(1) of Regulation (EC) No 44/2001, (2) which provides that a judgment is not to be recognised if such recognition is manifestly contrary to public policy in the State in which recognition is sought. More specifically, the key question is whether the fact that a judgment given in the State of origin is contrary to EU law justifies that judgment’s not being recognised in the State in which recognition is sought, on the grounds that it infringes public policy in that Member State. This case offers the Court the opportunity of refining the criteria to be taken into account by the court of the State in which recognition is sought, criteria most recently formulated in the judgment in Apostolides, (3) with a view to assessing whether there is a manifest breach of its public policy, when that breach stems from the infringement of rules of EU law.
II – Legal context
A – Regulation No 44/2001
2. Recitals 6, 16 and 17 in the preamble to Regulation No 44/2001 read as follows:
‘(6) In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.
…
(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.
(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.’
3. Articles 33(1), 34(1) and (2) and 36 of Regulation No 44/2001 are contained in Chapter III of that regulation, which is entitled ‘Recognition and enforcement’.
4. Article 33(1) of that regulation reads as follows:
‘1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.’
5. Article 34(1) and (2) of that regulation provides:
‘A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;’
6. In accordance with Article 36 of the same regulation:
‘Under no circumstances may a foreign judgment be reviewed as to its substance.’
B – Directive 2004/48/EC
7. Article 1 of Directive 2004/48/EC (4) provides that that directive concerns ‘the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights’, it being specified that that expression includes ‘industrial property rights’.
8. Article 2(1) of that directive states that the measures, procedures and remedies laid down by the directive are to apply ‘to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned’.
9. Pursuant to Article 3(2) of that directive, the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights which the Member States are required to adopt must be ‘effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse’.
10. To that end, Article 7(1) of Directive 2004/48 requires Member States to ensure that the competent judicial authorities may, in certain circumstances, ‘order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement’. That provision states that those measures may include ‘the physical seizure of the infringing goods’. Similarly, Article 9 of that directive, entitled ‘Provisional and precautionary measures’, at point (b) of paragraph 1, requires the Member States to ensure that the judicial authorities may, at the request of the applicant, ‘order the seizure or delivery up of the goods suspected of infringing an intellectual property right’. Articles 7(4) and 9(7) of the same directive provide that, ‘where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right’, the judicial authorities are to have the authority ‘to order the applicant, upon the request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures’.
11. With regard to the legal costs, Article 14 of Directive 2004/48 provides:
‘Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.’
III – The facts of the case in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
12. Diageo Brands BV (‘Diageo Brands’), which has its registered office in Amsterdam (Netherlands), is the proprietor of, inter alia, the trade mark ‘Johnny Walker’. It places that brand of whisky on the market in Bulgaria through a local exclusive importer.
13. Simiramida-04 EOOD (‘Simiramida’), established in Varna (Bulgaria), trades in alcoholic beverages.
14. On 31 December 2007, a container holding 12 096 bottles of whisky of the ‘Johnny Walker’ brand, intended for Simiramida, arrived from Georgia in the port of Varna (Bulgaria). Taking the view that the importation into Bulgaria of that consignment of bottles without authorisation constituted an infringement of the trade mark of which it is the proprietor, Diageo Brands requested and obtained on 12 March 2008 permission from the Sofiyski gradski sad (Sofia City Court, Bulgaria) to have the consignment of whisky at issue seized.
15. On 9 May 2008, ruling on an appeal lodged by Simiramida, the Sofiyski apelativen sad (Court of Appeal, Sofia) annulled the decision of 12 March 2008 authorising the seizure.
16. By judgments of 30 December 2008 and 24 March 2009, the Varhoven kasatsionen sad (Bulgarian Supreme Court) dismissed the appeal in cassation brought by Diageo Brands on formal grounds.
17. The seizure of the consignment of whisky carried out at the request of Diageo Brands was lifted on 9 April 2009.
18. In the substantive trade mark infringement proceedings brought by Diageo Brands against Simiramida, the Sofiyski gradski sad dismissed Diageo Brands’ claims by judgment of 11 January 2010. According to the order for reference, the Sofiyski gradski sad, without examining the facts of the case, held that it followed from an interpretative decision delivered by the Varhoven kasatsionen sad on 15 June 2009 that the import into Bulgaria of goods which, with the permission of the proprietor of the trade mark, have been placed on the market outside the European Economic Area (EEA) does not infringe the rights conferred by the trade mark. The Sofiyski gradski sad considered itself bound by that interpretative decision by virtue of Bulgarian procedural law.
19. Diageo Brands did not bring any appeal against that judgment of the Sofiyski gradski sad of 11 January 2010, which has become final.
20. In the case in the main proceedings, Simiramida claims, before the Netherlands courts, payment of a sum amounting to over EUR 10 million as compensation for the damage it claims to have suffered as a result of the seizure carried out at the request of Diageo Brands. Simiramida bases its claim on the judgment given on 11 January 2010 by the Sofiyski gradski sad, in that that judgment held that seizure to be unlawful. In its defence, Diageo Brands submits that that judgment cannot be recognised in the Netherlands on the ground that it is manifestly contrary to public policy within the meaning of Article 34(1) of Regulation No 44/2001. It is clear from the order for reference that, in its judgment of 11 January 2010, the Sofiyski gradski sad manifestly misapplied EU law by basing its ruling on an interpretative decision, itself vitiated by an error, that had been adopted by the Varhoven kasatsionen sad in breach of its obligation to refer a question for a preliminary ruling pursuant to Article 267 TFEU.
21. By judgment of 2 March 2011, the Rechtbank Amsterdam (District Court, Amsterdam) upheld the arguments advanced by Diageo Brands and dismissed Simiramida’s claim.
22. Ruling on an appeal brought by Simiramida, by judgment of 5 June 2012 the Gerechtshof te Amsterdam (Court of Appeal, Amsterdam) overturned the judgment of the Rechtbank Amsterdam and ruled that the judgment of 11 January 2010 of the Sofiyski gradski sad had to be recognised in the Netherlands. It did, however, decide to stay the proceedings concerning the claim for damages.
23. An appeal in cassation having been brought before it by Diageo Brands, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) held that ‘the parties are in agreement that the interpretative decision of the Varhoven kasatsionen sad of 15 June 2009 is contrary to EU law’, and that ‘Diageo Brands produced … a new interpretative decision of [the Varhoven kasatsionen sad] of 26 April 2012, in which the interpretative decision of 15 June 2009 is expressly confirmed’.
24. It is in those circumstances that, by judgment of 20 December 2013, received at the Court Registry on 23 December 2013, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Must Article 34(1) of Regulation (EC) No 44/2001 be interpreted as meaning that that ground for refusal is also applicable in a case where the decision of the court of the Member State of origin is manifestly contrary to EU law, and that fact has been recognised by that court?
2. (a) Must Article 34(1) of Regulation (EC) No 44/2001 be interpreted as meaning that successful reliance on that ground for refusal is precluded by the fact that the party which has recourse to that ground for refusal failed to make use of the legal remedies available in the Member State of origin of the decision?
(b) If the answer to Question 2(a) is in the affirmative, would the position be different if the utilisation of the legal remedies in the Member State of origin of the decision was pointless because it has to be assumed that it would not have led to any different decision?
3. Must Article 14 of Directive 2004/48/EC be interpreted as meaning that that provision is also applicable to the costs incurred by the parties in the context of proceedings for damages brought in a Member State if the claim and the defence relate to the alleged liability of the defendant by reason of the seizures which it made and the notices which it served with a view to enforcing its trade mark rights in another Member State, and in that connection a question arises concerning the recognition in the former Member State of a decision of the court in the latter Member State?’
25. In addition to the parties to the main proceedings, the German and Latvian Governments and the European Commission have submitted written observations.
26. In the course of the hearing held on 9 December 2014, oral argument was presented on behalf of the parties to the main proceedings and the Commission.
IV – Analysis
27. As a preliminary point, I shall examine the assumptions upon which the referring court bases its decision, before analysing the crucial aspects of the questions referred for a preliminary ruling by that court.
A – Preliminary considerations
28. It should be recalled, first of all, that it is for the national court to ascertain the facts that have given rise to the dispute before it and to establish the consequences they have for the judgment it is required to deliver. (5)
29. In the context of the division of jurisdiction between the Courts of the European Union and the national courts, it is in principle for the national court to determine whether the factual conditions giving rise to the application of a rule of EU law are satisfied in the case pending before it. However, the Court, when giving a preliminary ruling, may, if appropriate, provide clarification to guide the national court in its interpretation. (6)
30. In these circumstances, the Court is required to answer the questions concerning the interpretation of EU law which have been referred for a preliminary ruling, whilst leaving to that court the task of establishing the specific elements of the case before it. (7)
31. In that regard, I would point out, as is made clear in the order for reference, that the questions in that order are based on several assumptions, namely that the judgment of the Sofiyski gradski sad of 11 January 2010 and the interpretative decision of the Varhoven kasatsionen sad of 15 June 2009, on which the judgment of the Sofiyski gradski sad is based, are contrary to EU law. (8) Moreover, the referring court states that the second interpretative decision given by the Varhoven kasatsionen sad on 26 April 2012, in which the first interpretative decision was expressly confirmed, is also contrary to EU law.
32. In addition, as is clear from the written observations of the Commission, confirmed at the hearing, in the context of the infringement proceedings initiated by it regarding the compatibility of the case-law of the Varhoven kasatsionen sad with Article 5 of Directive 2008/95/EC, (9) the Commission examined the two interpretative decisions of that court. On completion of that examination, the Commission came to the conclusion that both the interpretative decision of 15 June 2009 and the more detailed interpretative decision of 26 April 2012 are consistent with EU law. It was able to terminate the infringement proceedings on the basis of that analysis. Thus, in the Commission’s view, the assertion contained in the order for reference to the effect that the interpretative decision of the Varhoven kasatsionen sad of 15 June 2009 is contrary to EU law is incorrect. I therefore find it not inconceivable that, in short, the Sofiyski gradski sad applied that decision incorrectly.
33. With regard to the judgment of the Sofiyski gradski sad of 11 January 2010, the order for reference states that the parties seem to be in agreement, in essence, that that judgment is contrary to Article 5 of Directive 89/104. (10) That article allows the trade mark proprietor to prevent all third parties, inter alia, from importing goods bearing that trade mark, offering the goods, putting them on the market or stocking them for these purposes. (11) In accordance with the Court’s case-law, that article must be interpreted to the effect that the proprietor of a trade mark may prevent original goods bearing that mark from being put on the market in the EEA for the first time without its consent. (12)
34. In the light of those preliminary remarks, and in view of the connections between some of the questions put by the referring court, the first and second questions, which relate to the interpretation of Article 34(1) of Regulation No 44/2001, will be examined together and in the first place. The question relating to the interpretation of Article 14 of Directive 2004/48 will be dealt with subsequently.
B – The first and second questions
35. The referring court asks the Court, in essence, whether the fact that a judgment given in the State of origin is contrary to EU law is justification for that judgment’s not being recognised in the State in which recognition is sought, on the grounds that the judgment infringes public policy in the latter State. The referring court further seeks to ascertain whether the court before which enforcement is sought may, or must, take account of the fact that the person opposing the recognition of the judgment in the State in which recognition is sought failed to make use of the legal remedies available to him in the State of origin.
36. In order to answer those questions, it is necessary, first of all, to determine the criteria in the light of which the court of the State in which recognition is sought must assess whether there is a manifest breach of its public policy. That involves, in essence, establishing the factors necessary for that assessment within the framework of case-law established by the Court concerning recourse to the concept of ‘public policy’ within the meaning of Regulation No 44/2001.
1. Preliminary observation on the concept of ‘public policy’
37. In the present case, a question has been raised before the Court relating to the interpretation of the concept of ‘public policy’ within the meaning of Article 34(1) of Regulation No 44/2001, that is to say, at the stage of the recognition of the judgment by the State in which recognition is sought.
38. With regard to the concept of ‘public policy’, the Court has consistently held that, 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. (13)
39. In the case in the main proceedings, the referring court notes the infringement, by the court of the State of origin, of a rule of substantive EU law, namely: Article 5 of Directive 89/104. It is clear from the order for reference that the breach of public policy does indeed relate to the infringement of EU law. It follows that the breach at issue concerns not national public policy at the stage of recognition, but the public policy of the European Union, which itself forms an integral part of national public policy. (14) Thus, certain provisions essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to the functioning of the internal market (15) justify, inter alia, the refusal to recognise an arbitration award. Indeed, although every Member State is to determine the requirements of its own public policy, there is still within national public policy a core set of values, principles and fundamental rules of the European Union, with the same legislative content, that every Member State must take into account.
2. The framework of case-law concerning the concept of ‘public policy’ within the meaning of Article 34(1) of Regulation No 44/2001
40. In accordance with recital 6 in the preamble thereto, Regulation No 44/2001 contributes to the creation of a European area of justice within which the free movement of judgments in civil and commercial matters, one of the fundamental objectives laid down in that regulation, must be ensured. It is clear from recitals 16 and 17 in the preamble to Regulation No 44/2001 that the rules on recognition and enforcement laid down by it are based on mutual trust in the administration of justice in the European Union. Such trust not only requires judicial decisions delivered in one Member State to be recognised automatically in another Member State, but also requires the procedure for making those decisions enforceable in that Member State to be efficient and rapid. Such a procedure, according to the terms of recital 17 in the preamble to that regulation, may involve only a purely formal check of the documents required for enforceability in the State in which enforcement is sought. (16)
41. In so far as the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the successive conventions relating to the accession of the new Member States to that convention (‘the Brussels Convention’), (17) was replaced by Regulation No 44/2001 (18) in relations between the Member States, an interpretation of the Convention given by the Court continues to apply to the corresponding provisions of that regulation. (19) This is the case with Article 34(1) of Regulation No 44/2001, which replaced Article 27(1) of the Brussels Convention. (20) In accordance with that article, a judgment is not to be recognised if such recognition is manifestly contrary to public policy in the State in which recognition is sought. The grounds of challenge that may be relied upon are expressly set out in Articles 34 and 35 of that regulation. That list, the items of which must be interpreted restrictively, is exhaustive in nature. (21) In particular, Article 34(1) of Regulation No 44/2001 must be interpreted strictly, since it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation. (22) The public policy clause contained in that provision may therefore be relied on only in exceptional cases. (23)
42. Indeed, as I have stated in point 38 of this Opinion, although public policy is a national concept, the Court does, however, subject that concept to close scrutiny and interpret it strictly. (24) That requirement of strict interpretation had previously appeared in the report produced by Mr P. Jenard (25) on the Brussels Convention, being known to national legal systems too. (26) Indeed, the adverb ‘manifestly’, added in the course of transformation of the Convention into the regulation, gives concrete expression, in the regulation, to the expectation of a manifest conflict between the recognition of judgments and public policy. (27) As is clear from the explanatory memorandum in relation to Article 41 of the proposal for a Council regulation, that change was intended to underscore the ‘exceptional nature of the public policy ground’ with a view to ‘improv[ing] the free movement of judgments’. (28)
43. In that connection, the Court has held that, by disallowing any review of the judgment given in another Member State as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the State in which enforcement is sought from refusing to recognise or enforce 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 enforcement is sought had it been seised of the dispute. As a general rule, the court of the State in which enforcement is sought may not review the accuracy of the findings of law or fact made by the court of the State of origin. (29)
44. It follows from the foregoing that recourse to the public policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only when recognition of the judgment given in another Member State would run unacceptably foul of the legal order of the State in which enforcement is sought, inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review as to substance of the judgment given in 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 enforcement is sought or of a right recognised as being fundamental within that legal order. (30) It is for the national court to ensure with equal diligence the protection of rights conferred by national law and rights conferred by EU law. (31)
3. Legal assessment
a) Breach of an essential rule, of a right recognised as fundamental or of a fundamental principle of EU law
45. As I have made clear in point 33 of this Opinion, in the case in the main proceedings the referring court mentions only the infringement, by the court of the State of origin, of Article 5 of Directive 89/104.
46. In that connection, the German Government and the Commission argue that it is difficult to see how the infringement of Article 5 of Directive 89/104 alleged to have been committed by the Sofiyski gradski sad in its judgment of 11 January 2010 may be regarded as a breach of a fundamental principle of EU law.
47. I share their view.
48. I note, first of all, that public policy within the meaning of Article 34(1) of Regulation No 44/2001 must be assessed in concreto, that is to say, on the basis of the seriousness of the effects produced by recognition of the judgment at issue. Thus, consideration must likewise be given to the relationship between the case in the main proceedings and the legal order of the State in which recognition is sought. (32)
49. In this case, as I have indicated in my preliminary remarks, although the assertion made in the order for reference to the effect that the interpretative decision of the Varhoven kasatsionen sad of 15 June 2009 is contrary to EU law is incorrect, the possibility remains, in the light of the Commission’s observations on the matter, that the Sofiyski gradski sad applied that decision incorrectly.
50. In accordance with the case-law of the Court, the court of the State in which enforcement is sought may not, without undermining 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. (33)
51. The exceptional nature of recourse to public policy leads me to take the view that, in principle, a potential error of law, such as that at issue in the main proceedings, cannot in itself be regarded as a breach of public policy or justify a refusal to recognise (34) the judgment emanating from the Sofiyski gradski sad. Indeed, on the one hand, the refusal to recognise its judgment does not satisfy the criteria set out in the case-law of the Court, recalled in point 44 of this Opinion. Grounds for refusal exist when the effects of the recognition of a judgment are contrary to public policy in the State in which recognition is sought, (35) which covers both national law and EU law, and those effects must reach a certain level of seriousness, that is to say, they must manifestly infringe a rule of law regarded as essential in the legal order of the State in which enforcement is sought or a right recognised as fundamental within that legal order. (36)On the other hand, recognition of the judgment of the Sofiyski gradski sad does not run unacceptably foul of the legal order of the State in which enforcement is sought, inasmuch as it does not infringe a fundamental principle. To rule otherwise would run the risk, as the Commission has observed, of reintroducing the power of review prohibited by Articles 36 and 45 of Regulation No 44/2001. In the Commission’s view, such a ruling would also, first, challenge the mutual trust in the administration of justice in the European Union on which the system of recognition and enforcement laid down in Regulation No 44/2001 is based and, secondly, create an obstacle to the efficient and rapid recognition and enforcement of judicial decisions.
52. Nevertheless, it is conceivable that, as a result of such an error, the recognition of a judgment could manifestly breach essential rules or fundamental principles, including those of EU law. Furthermore, it is to be emphasised that there must be a breach of those rules or of those principles (37) of European Union public policy. Moreover, like the Commission, I am not even convinced that, in the case in the main proceedings, the incorrect application or interpretation of a provision inserted into a directive seeking to achieve minimal harmonisation which sought to achieve the approximation of the trade mark laws of the Member States, while affording the Member States quite considerable freedom in relation to the directive’s transposition, (38) may be regarded as constituting a breach of essential rules or of fundamental principles. (39)
53. The answer given by the Court in the judgment in Eco Swiss (40) regarding the enforceability of an arbitration award does not alter that assessment. Indeed, in that judgment, the Court held that Article 101 TFEU is a fundamental provision which is essential for the accomplishment of the tasks entrusted to the European Union and, in particular, for the functioning of the internal market. (41) It concluded from this that that provision of EU law is a matter of public policy within the meaning of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, (42) which cannot be the case in relation to Article 5 of Directive 89/104, for the purpose of Article 34(1) of Regulation No 44/2001.
54. That that judgment is irrelevant for the purposes of the case in the main proceedings follows likewise from a series of other differences. In the first place, Article 34(1) of Regulation No 44/2001 allows Member States to refuse to recognise, not an arbitration award, but a judgment given in another Member State. However, the judgments of the national courts enjoy a presumption of legality. That presumption of legality warrants the public policy criterion applied by the Court being less strict for judgments than for arbitration awards. In the second place, judgments given by the courts of the Member States are subject to the system of judicial protection established by EU law and, in particular, to the preliminary ruling procedure, which is not the case for arbitration awards. (43) In that connection, the Court has made it clear that an arbitration tribunal constituted pursuant to an agreement between the parties is not a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, because arbitrators, unlike national courts and tribunals, are not in a position to request that the Court give a preliminary ruling on questions of interpretation of EU law. (44) Indeed, the mutual trust between the Member States in their judgments and the system of judicial protection established by EU law go a long way towards explaining why different solutions were adopted in Eco Swiss and in Renault. (45) In addition, it should be borne in mind that EU law requires Member States to afford reparation of damage caused to individuals as a result of an infringement of EU law for which they are responsible, including where that damage stems from a decision of a court adjudicating at last instance. (46) In addition to State liability, there is also the option of bringing an action for a declaration of a failure to fulfil obligations pursuant to Article 258 TFEU.
b) Breach of the principle of sincere cooperation
55. Diageo Brands claims that both the Sofiyski gradski sad and the Varhoven kasatsionen sad breached the obligation to refer a question to the Court for a preliminary ruling.
56. With regard, in the first place, to the obligation to make a reference incumbent on the Sofiyski gradski sad, I would point out that the Court has already held that the system established by Article 267 TFEU with a view to ensuring that EU law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts. (47)
57. In that regard, the system of references for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether that reference is appropriate and necessary. (48) Thus, in so far as no appeal lies against the decisions of a national court, such a court is, in principle, obliged to make a reference to the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of the Treaty on the functioning of the European Union is raised before it. (49)
58. In the case in the main proceedings, it is difficult to claim that the court of the State of origin committed a manifest breach of an obligation to refer the matter to the Court. Indeed, the Sofiyski gradski sad is a court of first instance whose judgment was open to appeal, or yet an appeal on a point of law before the Bulgarian court of last instance. It was therefore not required to refer a question for a preliminary ruling under the second paragraph of Article 267 TFEU. (50)
59. With regard, in the second place, to the interpretative decision of the Varhoven kasatsionen sad of 15 June 2009, which served as the basis for the judgment of the Sofiyski gradski sad of 11 January 2010, I shall simply state that the dispute in the main proceedings relates solely to the recognition of the judgment of the Sofiyski gradski sad of 11 January 2010.
c) The failure to exhaust legal remedies
60. It is apparent from the order for reference that, in the proceedings concerning it, Diageo Brands did not have recourse to the legal remedies available to it under national law. In that connection, it submits that it refrained from so doing because making use of the legal remedies available before the Bulgarian courts would have been pointless, for it would not have resulted in those courts coming to a different decision.
61. I am not persuaded by that argument.
62. I have made it clear, in point 50 of this Opinion, that a mere error of national or EU law cannot justify a refusal of recognition based on Article 34(1) of Regulation No 44/2001. (51) The Court has held that, in such cases, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords individuals a sufficient guarantee. (52)
63. It is true that, with regard to the legal remedies established at national level, Article 34(1) of Regulation No 44/2001 does not require the legal remedies in the Member State of origin to have been exhausted. Nevertheless, the Commission observes that Regulation No 44/2001 is based on the fundamental idea that the measures adopted in the context of substantive proceedings, including the correction of substantive errors, must be concentrated in the Member State of origin. (53)
64. Obviously, I endorse that approach. The exceptional nature of the public policy proviso is in fact also based on the assumption that the defendants will use all the legal remedies made available by the law of the Member State of origin in order to ensure that the errors of law are corrected. It is true that Article 34(1) of Regulation No 44/2001 does not require the legal remedies available in the Member State of origin to have been exhausted. Nevertheless, the view must be taken that, as a general rule and, quite clearly, 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. This is particularly important where the alleged breach of public policy stems from the infringement of EU law. Accordingly, there is a particular obligation for every court and tribunal of a Member State to comply with the public policy of the European Union. (54)
65. In that regard, it appears to me that the spirit and purpose of Regulation No 44/2001 support the taking into account, by the court of the State in which recognition is sought, of the fact that the person opposing the recognition of the judgment emanating from the State of origin has not used the legal remedies available to him under national law. (55) Accordingly, the existence in the legal order of the State of origin of mechanisms for obtaining redress for infringements of EU law committed by a national court must indeed be taken into account by the court of the State in which recognition is sought in order to assess whether there is a manifest breach of its public policy justifying a refusal to recognise a judgment within the context of Regulation No 44/2001. (56) However, this must be taken into account case by case, according to the specific circumstances of the situation in question. (57) As I have stated in point 39 of this Opinion, if the breach at issue relates to the public policy of the European Union, as opposed to national public policy, the obligation for all the Member States to take that breach into account follows from their duty to ensure that EU law is applied correctly. (58)
66. In the case in the main proceedings, if Diageo Brands had exhausted the legal remedies available to it under Bulgarian law, it would have been possible for it to argue before the Bulgarian court of last instance that it was necessary to refer a question for a preliminary ruling.
67. At all events, it should be borne in mind that, if, on the one hand, Diageo Brands had exhausted the legal remedies available to it before the Bulgarian courts and, on the other, the higher courts had misconstrued EU law, it would have been possible for Diageo Brands to bring proceedings seeking to have the Bulgarian State held liable. In the Commission’s view, although the system of judicial protection established by EU law cannot guarantee that no errors are made, it does, nevertheless, offer the parties the possibility of obtaining compensation in the event of the misapplication of EU law. In that regard, the Court has held, as I also stated in point 54 of this Opinion, that the principle that the Member States are liable to afford reparation of damage caused to individuals as a result of infringements of Community law for which they are responsible is also applicable when the alleged infringement stems from a decision of a court adjudicating at last instance. (59)
4. Interim conclusion
68. In the light of all the foregoing considerations, the first and second questions should be answered to the effect that, on a proper construction of Article 34(1) of Regulation No 44/2001, the fact that a judgment given in the State of origin is contrary to EU law does not justify that judgment’s not being recognised in the State in which recognition is sought on the grounds that it infringes public policy in the latter State. A mere error of national or EU law such as that at issue in the case in the main proceedings, inasmuch as it does not constitute a manifest breach of an essential rule of law within the legal system of the State in which recognition is sought, cannot justify a refusal of recognition based on Article 34(1) of Regulation No 44/2001.
69. When determining whether there is a manifest breach of public policy stemming from the infringement of the fundamental rules of EU law, the court of the State in which recognition is sought must take account of the fact that the person opposing the recognition of the judgment in that State failed to make use of the legal remedies available to him in the State of origin.
C – The third question
70. By its third question, the referring court asks, in essence, whether the legal costs associated with the main proceedings brought in a Member State, proceedings which relate to a claim for damages in respect of injury caused as a result of a seizure, in the course of which a question was raised concerning the recognition of a judgment given in another Member State in proceedings seeking to enforce an intellectual property right, are covered by Article 14 of Directive 2004/48.
71. In accordance with Article 1 thereof, Directive 2004/48 concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. Furthermore, Article 2(1) of that directive provides that those measures, procedures and remedies apply, in accordance with Article 3 of that directive, to any infringement of intellectual property rights as provided for, inter alia, by the national law of the Member State concerned. Thus, the general objective of Directive 2004/48 is to approximate the legislative systems of the Member States so as to ensure a high, equivalent and homogeneous level of protection in the internal market. (60)
72. Moreover, Directive 2004/48 is intended to govern only the aspects of intellectual property rights related, first, to the enforcement of those rights and, secondly, to infringement of them, by requiring there to be effective legal remedies designed to prevent, terminate or rectify any infringement of an existing intellectual property right. (61)
73. In that connection, actions for damages are closely linked to proceedings brought to ensure the protection of intellectual property rights. Thus, on the one hand, Article 7 of Directive 2004/48 provides for measures which allow the seizure of goods suspected of infringing intellectual property rights. (62) On the other hand, Article 9(7) of that directive provides for measures which allow an action for damages to be brought in respect of injury caused by an unjustified seizure. In the Commission’s view, those measures constitute a guarantee which the legislature deemed necessary as a counterweight to the prompt and effective provisional measures for which it made provision. (63)
74. With regard to Article 14 of Directive 2004/48, the Court has held that that provision is intended 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. (64)
75. I share the Commission’s opinion that the broadly framed and general wording of Article 14 of Directive 2004/48, which refers to the ‘successful party’ and the ‘unsuccessful party’, without specifying the kind of procedure concerned provided for by that directive, permits the inference that that provision is applicable in the case of an unsuccessful party who is not the proprietor of an intellectual property right and is in fact suspected of having infringed such a right.
76. In the light of all the foregoing considerations, the third question is to be answered to the effect that the legal costs associated with the main proceedings brought in the Netherlands, proceedings which relate to a claim for damages in respect of injury caused as a result of a seizure, in the course of which a question was raised concerning the recognition of a judgment given in another Member State in proceedings seeking to enforce an intellectual property right, are covered by Article 14 of Directive 2004/48.
V – Conclusion
77. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Hoge Raad der Nederlanden for a preliminary ruling as follows:
(1) On a proper construction of Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the fact that a judgment given in the State of origin is contrary to EU law does not justify that judgment’s not being recognised in the State in which recognition is sought on the grounds that it infringes public policy in the latter State. A mere error of national or EU law such as that at issue in the main proceedings, inasmuch as it does not constitute a manifest breach of an essential rule of law within the legal system of the State in which recognition is sought, cannot justify refusal of recognition based on Article 34(1) of Regulation No 44/2001. When determining whether there is a manifest breach of public policy stemming from the infringement of the fundamental rules of EU law, the court of the State in which recognition is sought must take account of the fact that the person opposing the recognition of the judgment in that State failed to make use of the legal remedies available to him in the State of origin.
(2) The legal costs associated with the main proceedings brought in a Member State, proceedings which relate to a claim for damages in respect of injury caused as a result of a seizure, in the course of which a question was raised concerning the recognition of a judgment given in another Member State in proceedings seeking to enforce an intellectual property right, are covered by Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.