most interesting rulings | In Principle

W polskiej praktyce obrotu gospodarczego od dłuższego czasu budzi wątpliwości możliwość skutecznego wprowadzenia w umowach o roboty budowlane klauzul nakładających na jedną ze stron kontraktu obowiązek powiadomienia drugiej strony o okolicznościach uprawniających do żądania dodatkowej zapłaty za wynagrodzenie. Klauzule te wywodzą się z kontraktów zawieranych na wzorcach umownych FIDIC, opracowanych przez Międzynarodową Federację Inżynierów Konsultantów.

A December KIO ruling dealt with an IT aspect of the qualified electronic signature. A contractor had purchased an electronic signature from a trusted supplier, but despite this, the ESPD signed using the electronic signature was invalidated.

A guarantee agreement is the most widely accepted and common basis for a number of solutions used in M&A transactions. Therefore, its correct application is of fundamental importance for this practice. Meanwhile, judgments issued in recent years by the Supreme Court of Poland on the nature and normative sources of such obligations have caused doctrinal controversies and uncertainty among trade participants. It is therefore worth briefly summarising where the case law stands and the conclusions that can be drawn from it.

A judgment of the Supreme Court overruling a decision of the president of the Office of Competition and Consumer Protection (UOKiK) does not apply to all participants in an agreement restricting competition. If a cassation appeal by one of them has been rejected or the Supreme Court has refused to accept it for examination, the case is irrevocably closed, regardless of how the proceedings continue and whether the decision of the president of UOKiK is ultimately upheld.

To obtain protection for a trademark the owner must prove that a sign has a distinctive character, i.e. it is not merely descriptive. But it is often unclear whether this is the case.

The Supreme Court recently examined the question of courts being bound by final judgments issued in other cases. This issue relates to the binding nature of a judgment from a substantive point of view, i.e. that the same claim cannot be heard again once adjudicated upon. This is an issue of considerable practical relevance because it determines how the outcome of one case can affect how comparable cases are adjudicated. It also defines the boundaries with respect to a court’s freedom to ascertain facts and make legal evaluations by itself.

The judgment issued on 25 July following a request for a preliminary ruling from an Irish court in case C-216/18 PPU L.M. does not essentially differ from the opinion issued by the advocate general. The CJEU stated specifically the circumstances in which the executing authority can find an exception to the principle of mutual recognition, but placed the final decision in the hands of the national court executing the European arrest warrant.

The European Court of Justice (CJEU) has ruled that Christian Louboutin’s famous red sole does not consist solely of a shape that significantly increases the value of a product, and therefore can be registered as a trademark. This is an important victory for the fashion designer in the long-running battle concerning red-soled shoes.

Earlier this year, the European Commission scored an important success in its campaign against intra-EU Bilateral Investment Treaties. The CJEU’s judgment in the Achmea case1 confirmed the Commission’s standpoint that a system that allows an investor from one EU Member State to challenge in international arbitration measures taken against its investment by another, host EU Member State, is incompatible with EU law.

The Act on Consideration of Complaints by Financial Market Entities and on the Financial Ombudsman provides that a complaint not resolved within the stated period “is regarded as” resolved in accordance with the customer’s request. In a surprising resolution, the Supreme Court recently ruled that this does not mean that a delay in consideration of a complaint mandates that it is resolved in the customer’s favour, but such a delay merely increases the burden faced by the entity during litigation. If, of course, the matter ever reaches the courts. Was this what the legislature intended?

On 28 June 2018 the advocate general at the European Court of Justice issued an opinion regarding a request for a preliminary ruling from an Irish court on whether the judicial authority executing a European arrest warrant against a citizen of a different EU member state is required to postpone execution of the warrant in order to determine whether there is a real risk of breach of the right to a fair trial in the issuing state due to deficiencies in the system of justice of the issuing state.

The Polish Supreme Court has confirmed that there is no reason not to confirm that a foreign judgment against a bankrupt company is enforceable, and issue an enforcement clause. Courts of lower instance have ruled out this possibility.