European Union updates

Employment & Immigration

Contributed by Allen & Overy LLP
EU member states must require employers to record working time systematically
  • European Union
  • 22 May 2019

The European Court of Justice recently ruled that EU member states must require employers to establish an objective, reliable and accessible system for measuring their employees' daily working times. Without such a system, the hours and overtime actually worked cannot be reliably measured and employees' ability to enforce their rights cannot be guaranteed.

Correct implementation of employment contracts: favourability assessment in case of dispute
  • European Union
  • 05 December 2018

With respect to employers with a multi-jurisdictional presence in the European Union, where a dispute arises between them and an employee concerning the law applicable to cross-border employment contracts, it is first necessary to assess whether the objectively applicable law was deviated from by way of a choice-of-law clause. If so, it is then necessary to determine whether this affects the objectively applicable law's mandatory provisions and whether these are more favourable to the employee than the law chosen.

Correct implementation of employment contracts: choice of law and applicable law
  • European Union
  • 28 November 2018

In employment contracts with a cross-border reach, it is always necessary to determine the objective law to which the contract is to be subject and to what extent this may be deviated from by way of a choice-of-law clause. While the primary deciding factor in this context is the place in which employees generally perform their work, a number of problems may be encountered when determining where this is.

Cross-border reorganisation – transfers of foreign units to domestic companies
  • European Union
  • 21 November 2018

Foreign companies planning to transfer local business units to a domestic company must first resolve a number of issues. Since the cross-border spin-off is currently not regarded as a feasible option, the transfer of assets and liabilities must be effected by way of an asset deal. In Europe, this generally triggers a business transfer under local law whereby the employment contracts of the staff within the unit in question are transferred to the domestic company.

Cross-border reorganisation – foreign companies with a local branch
  • European Union
  • 14 November 2018

Many international companies run their domestic operations via a branch of a foreign parent, rather than a locally established company. While cross-border spin-offs are theoretically permitted under European law, they do not represent a feasible option due to inadequate domestic regulations. Whether such reorganisations will affect workers' employment status and works councils' co-determination rights, particularly following a change in operations, must be assessed on a case-by-case basis.


Franchising

European Commission's VBER review – what does it mean for franchising?
Fieldfisher LLP
  • European Union
  • 15 September 2020

The EU Vertical Block Exemption Regulation will expire on 31 May 2022 and the European Commission is reviewing its effectiveness to determine whether it should lapse, its duration should be prolonged or it requires revision to take account of market developments since 2010 (most notably with regard to online sales and online platforms). This article explores the process so far and examines what this review means for franchising.

Keeping your trade secrets safe – EU perspective for franchisors
Fieldfisher LLP
  • European Union
  • 15 October 2019

The EU Trade Secrets Directive seeks to harmonise the protection of trade secrets in all EU member states. In general, the implementation of the directive is positive for franchisors, as the protection of trade secrets and confidential information is key to the success of a franchise system. Although franchisors may be able to rely on the statutory definition of 'trade secret' set out under the directive, they should nonetheless continue to ensure that their confidential information is safeguarded contractually.


Healthcare & Life Sciences

Contributed by Eversheds Sutherland (International) LLP
Cybersecurity in healthcare sector – Q&A on data breaches in relation to medical devices
  • European Union
  • 19 August 2020

The use of connected medical devices has changed the way in which the healthcare sector works. However, the various benefits based on the advance of connected healthcare come with an increased flow of personal data, whether in hospitals or between different market players in the healthcare industry, which has led to an increased risk of cybersecurity incidents and personal data breaches.

Intellectual property in clinical trials
  • European Union
  • 12 August 2020

Clinical trial results may qualify for protection as IP rights and, as such, for commercialisation in the European Union. In order for clinical trial results to be commercialised, they must be protected by the parties involved (eg, sponsors, institutions, investigators or contract research organisations). Clinical trial results may also be protected in the European Union using supplementary protection certificates, regulatory data exclusivity, orphan market exclusivity or paediatric-use marketing authorisation.

Conducting clinical trials during COVID-19 crisis: FAQs
  • European Union
  • 20 May 2020

COVID-19 is having a significant impact on clinical trials due to its affects on EU healthcare systems, including limited or no patient contact, restricted access to trial sites and investigational medicinal product shortages. The pandemic is not only compromising effective patient treatment, it will also significantly affect ongoing and planned clinical trials, which are crucial for developing medicines and vaccines. Sponsors and investigators must therefore adapt their management of clinical trials.

EU postpones MDR due to COVID-19: losses and opportunities for medical device sector
  • European Union
  • 22 April 2020

In light of the COVID-19 pandemic's impact on medical device industry players (eg, manufacturers, notified bodies, suppliers, production sites and research institutions), on 25 March 2020 the European Commission announced that it intends to postpone the application date for the EU Medical Device Regulation (MDR) from May 2020 to May 2021. The European Council agreed to the MDR postponement on 7 April 2020 and the European Parliament followed suit on 17 April 2020.

COVID-19: impact on medical device industry in European Union
  • European Union
  • 15 April 2020

The COVID-19 pandemic is having a significant impact on the medical device industry in the European Union. For instance, scientists and engineers who have been working on the new EU Medical Device Regulation framework for several years are now switching to COVID-19-related research. The pandemic has also significantly increased the demand for protective equipment such as face shields, protective mouth and nose masks, protective clothing and gloves.


Insurance

Changes to Solvency II make it easier for insurers to invest in economy
DLA Piper
  • European Union
  • 04 June 2019

The European Commission recently adopted new rules to help insurers invest in equity and private debt and provide long-term capital financing. As a result of the new rules, insurers will have to hold less capital for investments in equity and private debt, including in small and medium-sized enterprises. The newly adopted rules take the form of a delegated regulation, amend the EU Solvency II Directive and follow on from the mid-term review of the Capital Markets Union Action Plan.


Intellectual Property

Intellectual property in clinical trials
  • European Union
  • 17 August 2020

Clinical trial results may qualify for protection as IP rights and, as such, for commercialisation in the European Union. In order for clinical trial results to be commercialised, they must be protected by the parties involved (eg, sponsors, institutions, investigators or contract research organisations). Clinical trial results may also be protected in the European Union using supplementary protection certificates, regulatory data exclusivity, orphan market exclusivity or paediatric-use marketing authorisation.

Community design courts find infringement of well-known GHD hair straighteners
Grau & Angulo
  • European Union
  • 27 April 2020

Section 8 of the Alicante Court of Appeal, acting as the Community Design Court, recently confirmed the infringement of Jemella Limited's Community design which had previously been declared by the first-instance Community design court. The Community design in question protected the special shape of the well-known GHD IV Styler hair straightener.

Obtaining patent protection for software in Europe
GEVERS
  • European Union
  • 24 February 2020

Under the European Patent Convention, a computer program per se is not considered a patentable invention; rather, program listings per se are protected by copyright. However, in many cases, a computer program can be considered a technical solution to a technical problem and is thus patentable. For a European patent to be granted, applicants must show that this solution is novel and involves an inventive step with respect to prior art.

EU Trademark Court rules on use of well-known trademarks to sell smell-alike perfumes
Grau & Angulo
  • European Union
  • 06 May 2019

Section 8 of the Alicante Provincial Court (acting as the EU Trademark Court) recently dismissed Equivalenza Retail, SL's appeal against the Alicante Commercial Court Number 2 judgment in which it had been sentenced for infringing various perfume trademarks owned by Hugo Boss, Gucci and Lacoste in the context of its smell-alike business. Equivalenza had used the trademarks both in comparison lists and orally in commercial speech.

Battle of the bottles: EU Trademark Court of Appeal finds infringement of well-known Malibu bottle
Grau & Angulo
  • European Union
  • 22 April 2019

In December 2018 the EU Trademark Court of Appeal declared that the Ibiza Beach drink marketed by Productos Ibicencos, SL and Aromáticas de Ibiza, SL – whose bottle was highly similar to the well-known Malibu bottle – infringed The Absolut Company AB's (TAC's) 3D and graphic trademarks which protect the shape of such bottle. Among other things, the court held that the defendants had taken unfair advantage of TAC's trademarks, as their product was very similar in appearance.