PLANT VARIETIES: THE GROWING ROLE OF THE CPVO (COMMUNITY PLANT VARIETY OFFICE) BOARD OF APPEAL IN THE LIGHT OF THE RECENT CASE “SIBERIA”

08/07/2020

In the recent case before the Sixth Chamber of the General Court (see Judgment of the General Court, VI Chamber, 25th June 2020, T-737/18 – Siberia Oriental BV vs. Community Plant Variety Office), the latter reiterated two important principles governing the administrative procedure for assessing the registration of a plant variety right.

 

The case
The Netherlands company Siberia Oriental BV appealed the decision of the CPVO Board of Appeal of 15th October 2018 concerning the request for modification of the expiry date of the Community plant variety right of the variety Siberia, of the species Lilium L.
The Community plant variety right was granted by the CPVO on 2nd August 1996 and the expiry date was set on 1st February 2018. In August 2017, the applicant requested the CPVO to change the expiry date of the plant variety right, replacing the date initially fixed with 30 April 2020. The applicant claimed that, first, the duration of the plant variety right should have been calculated by the CPVO on the basis of Article 19 of Regulation (EU) No 2100/94 and that, secondly, the CPVO should have reduced the duration of the plant variety right in accordance with Article 116 paragraph 4 of that Regulation, in view of the period between the first sale of the plant variety in question and the date of entry into force of the mentioned Regulation.

The decision of the UCVV Board of Appeal
The Board of Appeal declared the application inadmissible on the ground, first, that the two-month period laid down in Article 69 of EU Regulation No 2100/94 for lodging an appeal against the CPVO’s decision had already expired. Second, the Board of Appeal affirmed that the application could not be based on Article 67 in combination with Article 87 of Regulation (EU) No 2100/94, since those provisions concern the initial registration of the expiry date of the Community plant variety right and not its modification. Third, the Board of Appeal stated that Article 53 paragraphs 4 and 5 of EU Regulation No. 874/2009 of the European Commission – concerning the procedure for the correction of the CPVO’s decisions in case of linguistic errors, errors of transcription or patent mistakes – could not be applied in the present case.

The appeal before the EU General Court
Siberia Oriental BV appealed the decision of the CPVV Board of Appeal before the EU General Court.
The applicant submitted two pleas: first, the alleged infringement of procedural requirements provided by EU Regulation No 2100/94. In particular, the applicant claimed that the decision of the CPVO was inadequately reasoned. Second, the applicant alleges that the Board of Appeal infringed EU Regulation No 2100/94 and any law relating to its application, including the TEU and the TFEU. In particular, the applicant submits that the Board of Appeal erroneously found: (1) that the application could not be based on Article 67 in combination with Article 87 of EU Regulation No 2100/94; (2) that the application could not be based on Article 53(4) of the Implementing Regulation No 874/2009.
In conclusion, the applicant requested the General Court to revise the CPVO’s decision by amending itself the date of expiry of the plant variety right in question.

The decision of the General Court
The General Court, required to cancel the decision of the CPVO, addressed the issue of the role it must play in relation to the decisions of an administrative body, namely the CPVO Board of Appeal. First, the General Court stated that the CPVO is required, in accordance with Article 73 paragraph 6 of EU Regulation No 2100/94, to take all necessary measures to comply with the judgment of the EU Court, having regard to the operative part of the judgment and its reasoning, without the EU Court being able to order the administrative body to carry out a particular activity. Therefore, the General Court declared the applicant’s appeal inadmissible in so far as it required the Court to change the date of expiry of the Community plant variety right. Second, the General Court set out the criteria on the basis of which a decision of the CPVO can be regarded as sufficiently reasoned within the meaning of Article 75 of EU Regulation No 2100/94 and Article 296 TFEU. As European case-law has repeatedly pointed out, the obligation to provide sufficient reasoning meets two objectives: first, to enable the persons concerned to know the reasons for the measure adopted by the administrative body and, second, to enable the EU Court to verify the lawfulness of the administrative decision.
More specifically, the General Court states that the CPVO can fulfill the obligation to provide sufficient reasoning to its decision “without responding expressly and exhaustively to all the arguments submitted by an applicant, as long as the CPVO explains the facts and legal considerations which are of essential importance to the economy of the decision (…) The reasoning does not necessarily have to specify all the relevant factual and legal elements, in so far as, in order to ascertain whether the reasoning of an act satisfies the requirements of Article 296 TFEU, reference must be made not only to the content of that act but also to its context and to all the legal rules governing the subject-matter concerned”.
With regard to the present case, the General Court found that the Board of Appeal of the CPVO had provided a sufficient reasoning for its decision, stating that the refusal to exercise the power to correct the expiry date of the plant variety right in question could not be appealed pursuant to Article 67 of EU Regulation No 2100/94 adding that such a refusal did not constitute a decision related to data registration or cancellation within the meaning of Article 87 of that Regulation.

Conclusions
The recent decision of the General Court increases the role that the Board of Appeal will play in the future. By imposing on the latter the obligation to give precise reasoning for its decision, the European Court has required the Board of Appeal to act increasingly like a Court of Justice rather than a simple office granting or rejecting applications for registration of plant variety rights.

Luigi Goglia, Camilla Macrì


A CLEAR NO TO NOSECCO! THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES REJECTS THE APPEAL IN A NEW CHAPTER IN THE BUBBLE WAR. THE PROTECTED DESIGNATION OF ORIGIN “PROSECCO” IS AN OBSTACLE TO THE REGISTRATION OF THE TRADEMARK “NOSECCO”.

02/07/2020

By decision of 24 June, the High Court of Justice of England and Wales confirmed the previous rejection of the application for the trademark Nosecco of the Intellectual Property Office of the United Kingdom, considering the interference with the protected designation of origin “Prosecco”, under EU Regulation No 1308/2013, and also considering the risk that the sign could mislead the English public.

 

The contested trademark application
The well-known French company Les Grand Chais de France, producer of a non-alcoholic sparkling wine, had filed an application in January 2018 for the following international trademark for non-alcoholic wines:

The opposition procedure
The Italian Consortium for the Protection of the Controlled Designation of Origin Prosecco has successfully filed an opposition against the above trademark application before the Intellectual Property Office of the United Kingdom: the office pointed out that EU Regulation no. 1308/2013 shields protected designations of origin explicitly from “any misuse, imitation or evocation” and this also when the actual origin of the product is indicated (as happened in this case). The UK office also stressed that the term “evocation” does not require any risk of confusion: for having an evocation it would be sufficient to have a link to the protected term designation of origin to convey a new message to the consumer. Moreover, the trademark would be deceptive for the consumer who could well expect that the product thus indicated would, in some way, result from the elaboration of an authentic Prosecco.

The appeal
The decision was appealed by the French company. The combination of the initial negation ‘No’ with the adjective ‘secco’ (= “dry” in Italian language) would have the meaning of a witty indication for a beverage which is not dry and therefore sweet. The starting point of the argument was that knowledge of the Italian term ‘secco’ could be taken for granted, even by an English-speaking public. If anything, the imaginative creation “No secco” would be considered as a legitimate parody of the term Prosecco. The play on words could therefore also be interpreted as a “no” to “prosecco”, an interpretation that would distance the consumer from the protected term. To describe this argument the appellant had used the suggestive term “teach away”, and thus the expression known in the patent field to highlight the irreconcilable conceptual distance and different direction between two ideas. The mentioning that there would be “many reasons why people choose non-alcoholic beverages, including reasons of religion, health, low calorie requirements, legitimate participation in motorized traffic”, the French appellant had also implicitly suggested the possible relevance of fundamental rights to the present case. Moreover, according to the appellant, the decision of rejection was unjustifiably based on a “presumed consumer perception” since it was not considered necessary to have concrete evidence of the latter.

The decision of the High Court of Justice of England and Wales
The High Court of Justice of England and Wales rejected the appeal, confirming the previous decision: what matters is not the intention of the creator of the sign but, as correctly observed by the Office, the alleged public perception. The first association of the public, in the case of the sign “Nosecco”, would be the well-known “Prosecco”, while the possible second thought would derive from the denial, namely that it is not a Prosecco and that it is not a dry-tasting drink. There would therefore be no room for the application of a “teach away” doctrine in the field of distinctive signs. It was also reaffirmed that the application of the criterion of “presumed consumer perception”, even without resorting to ex officio technical advice, must be considered to be confirmed by settled case-law of the Court of Justice of the European Union.

Note
From a systematic – conceptual point of view, the decision of the High Court of Justice of England and Wales is not surprising: the text of EU Regulation 1308/2013, which expressly prohibits any “evocation”, has often been applied with severity even in the previous case law of the Court of Justice concerning the conflicts between the signs Cognac / Konjakkia; Gorgonzola / Cambozola or Calvados / Verlados. The application of the criterion of “presumed public perception”, to be determined directly by the Judge, can also be based on established case law. Nevertheless, in order to correctly determine the perception of the public, it will be necessary to observe very carefully changing customs. The present dispute can be framed in a broader context in which it can often be observed how the use of signs for non-traditional food and drink clashes with historical-traditional signs. The ever-increasing demand for new types of food, capable of satisfying increasingly different and diversified demands, sometimes supported by aspects such as religion and health, and on the other hand the possibility of enjoying food from increasingly diverse origins, will inevitably change the type of perception that the consumer will have in relation to the signs used in these areas.

Tankred Thiem


FUNCTIONAL SHAPES AND HEAP OF PROTECTIONS: CGUE ADMITS CUMULATION BETWEEN PATENT AND COPYRIGHT

16/06/2020

By its recent decision of 11 June 2020 in Case C-833/18, the Court of Justice of the European Union (CJEU) confirmed that a certain shape, even if already covered by patent protection, can also be protected by copyright if the requirements for protection are fulfilled. In particular, according to the CJEU, even the shapes (at least in part) necessary to achieve a technical result may be sufficiently “creative” to obtain copyright protection, even if already covered by patent protection (now expired).

 

The proceedings before the CJEU
The manufacturer of a well-known folding bicycle applied to the Business Court in Liège, Belgium, for a declaration of infringement of its copyright in relation to the product itself by a bicycle with a highly similar visual appearance, manufactured and marketed by a competitor. The shape was characteristic of a folding bicycle capable of taking three different positions (open, stand by and folded while remaining balanced on the ground) and had already been the subject of a patent which subsequently became public knowledge.
The competitor argued that the shape of the bicycle at issue would not be eligible for copyright protection because it needed the technical function (folding mechanism), as confirmed by the existence of a patent for invention (now expired) on the very same shape.
Consequently, the Belgian Business Court has referred to the Court of Justice of the European Union the question whether works whose shape is necessary to obtain a technical result are excluded from the protection granted by copyright and whether, in order to consider a shape to be technically necessary, account must be taken, inter alia, of the existence of earlier patent protection or the existence of other possible shapes which would enable the same result to be achieved.

The CJEU Decision
In answering the questions posed by the Territorial Court, the Court of Justice of the European Union confirmed that, according to the law of the Union, the meaning of “work” consists of two elements: on the one hand, it implies an original object which is an intellectual creation belonging to its author and, on the other hand, it requires an expression of that creation. In relation to the concept of ‘originality’, the CJEU held that it is sufficient for the object to reflect the personality of its author, manifesting the author’s free and creative choices, even if the shape of the object is determined by technical reasons. Obviously, according to the CJEU, a free and creative choice of the author must also be found in the choice of technical solutions. The only limit that meets the protection of copyright on shapes is therefore the assessment of the author’s “creativity”, i.e. whether the creation of an object has been determined by technical reasons, rules or other constraints that have left no room for the exercise of the author’s creative freedom or have left it so limited that the idea and its expression are confused. This regardless of whether there are other possible shapes, i.e. a (expired) patent on the shape itself.

Potential (and expected) competitive implications
The decision made by the CJEU follows on from previous decisions that have admitted the cumulation between the shapes of copyright protection with those of design and patents for invention. The same Court recently ruled that particular types of jeans and sweatshirts, already protected as designs, could also be protected from a copyright point of view if the shape could be determined by creative choice and expression of the author’s personality (see decision of 12 September 2019, case C-683/17 “Cofemel”). However, such an interpretation brings with it clear anti-competitive and possible system-breaking effects that cannot be underestimated (on this point, see below the Opinion of the Advocate General in Case C-833/18).
Indeed, we should not forget that our system is conceived to achieve a proper balance between IP monopolies, aimed at fostering creativity, the development of technological progress and free competition. Increasing the possibility of cumulation of exclusive rights on certain shapes or objects reduces, as a result, the possibility of competitors entering the market, thus increasing the (legal) monopoly on certain shapes. In addition, legitimizing the use of the most extensive copyright protection on certain shapes that should have been the object of design protection and/or patent protection for invention also risks to discourage the use of such types of protection because they are more expensive and complex to obtain (accordingly, see also the ZANON, I modelli di utilità, in Codice della proprietà industriale edited by Adriano Vanzetti, Giuffrè Editore 2013, 1030 ff.). Moreover, it cannot be overlooked how the court’s arguments do not appear completely clear, since the copyright typically creative space does not normally exist when facing a functional choice, which as such is substantially necessary because of the function that is intended to be achieved.
However, the protectionist drift now mentioned does not seem to affect the decisions made by the CJEU on the protection of shape trademarks. In fact, the case law of the Court of Justice has always been opposed to the protection of even partially functional shapes as trademarks, so that the Court specified in Decision C-48/09 (Lego Iuris case) that “when the shape of a product merely incorporates the technical solution developed by the manufacturer of that product and patented by it, protection of that shape as a trade mark once the patent has expired would considerably and permanently reduce the opportunity for other undertakings to use that technical solution” (Par. 46). This is because “in the system of intellectual property rights developed in the European Union, technical solutions are capable of protection only for a limited period, so that subsequently they may be freely used by all economic operators” (Par. 46). It is true that the copyright protection is not perpetual, expiring 70 years after the death of the author, but it is also true that this is a very long period of time, which in many cases completely exhausts the concrete possibilities of exploitation of an invention or a solution.
It is therefore clear that there is a divergence between decisions made by the same Court on the protection of shape in the fields of copyright and shape trademarks, with evidently conflicting reasons. It is desirable, in order to keep the system alive, that the CJEU will harmonise its decisions on the cumulation of shape protections so as to bring back clarity to users.

Alessandro Bura


COVID-19 AND PATENT PROTECTION: A CALL FROM THE WHO TO CREATE A TECHNICAL POOL REGARDING VACCINES AND CURES

09/06/2020

Last month the World Health Organization welcomed the initiative presented by Costa-Rican functionaries to create a platform of solidarity for sharing the patenting rights anti-Covid-19. The topic raises many questions, considering the monopolistic nature of intellectual property rights and various interests involved. Among them, the right to health and to economic initiative.

 

World Health Organization’s recent initiative
Last May 18th 2020, the World Health Organization welcomed the initiative to create a “Covid-19 – Intellectual Property Pool”. The plan, presented weeks ago by Costa-Rican functionaries, proposes to create a platform of solidarity for sharing the patenting rights, data from tests and other information necessary for the development of drugs, vaccines and diagnosis tests for COVID-19.
The initiative was born from the concern that, in a near future, anti-COVID19 medical products could possibly not be accessible to the world’s poorest populations. According to the initiative, the creation of a platform of voluntary solidarity under the WHO would allow the creation of a path shared among governments, companies, universities and no-profit organizations – the decision-making body of the WHO – is evaluating the adoption of the resolution presented by the European Union. The resolution incorporates Costa Rica’s proposal and aims at ensuring that less developed countries will have access to the use of products claimed by any patent applications for drugs or medical products against Covid-19.
The topic is sensitive, considering the monopolistic nature of intellectual property rights; furthermore, it would require a specific intervention which, despite the exceptional situation created by Covid-19, still respect the general principles of the judicial system and properly regulates any potential economic fallout. The interests at stake are numerous: firstly, there are countries’ national interests, as the COVID-19 vaccine may be used as a competitive advantage at a geopolitical level. Secondly, the intellectual property rights of pharmaceutical companies must be considered, indeed economic returns on any investments made should be guaranteed (in the context of COVID-19 we have seen a unique mobilization of human and financial resources in the history of medical research). Lastly, as a primary assert, public health should be protected since it is a fundamental right recognized by all constitutional charters.

Knowledge sharing or mandatory licensing of patents?
It is necessary to distinguish between two possible methods of international cooperation in the fight against COVID-19. Countries could collaborate in developing and producing new drugs, diagnosis methods and vaccines, also including the cooperation of public institutions such as universities or research centers. In this case, an agreement could be reached, also utilizing the aforementioned “call” made by WHO, with the aim to guarantee equal access to any medical product resulting from the shared research. Alternatively, the private property rights and their negotiating circulation could be regulated in such a way as to guarantee their use to the largest number of people possible. Here the choice could be varied: either, as the WHO suggests, a suspension of the legal monopoly rights on inventions specifically intended for the care and treatment of COVID-19 (moreover it would then be necessary to distinguish with respect to the etiology of symptoms that the COVID-19 has in common with other pathologies), or the remodeling and compression of these rights.
The approach of the voluntary sharing platform differs, in fact, from the proposal – coming from non-governmental organizations and academic experts – instead aiming at urging States to resort to the institution of compulsory licenses. The latter is an instrument of flexibility introduced by the agreement of the World Trade Organization: “Trade-Related Aspects of Intellectual Property Rights” (hereinafter, TRIPS). The compulsory licenses allow for either the production of patented drugs, in the presence of certain circumstances, or the import of these from another country in case the importing country lacks the pharmaceutic-industrial infrastructure necessary (parallel imports), without the patent holder’s consent. The route which allows to activate the compulsory licenses is composed by a series of progressive phases.
Firstly, a national health emergency must be occurring so that a formal request may be made to the rights holder for an immediate authorization for the production of the necessary drugs. If the rights holder were to not grant their consent, then it is possible to proceed to an imposition of a compulsory license (granted that a severe health crisis is underway in the petitioning country) and this in the face of the willingness to pay a reasonable fee to the holder of the patent itself and on condition that the compulsory license is limited temporally and geographically.
In the past few years, several developing countries have resorted to the compulsory license instrument due to the high cost of drugs, facing hard battles with the pharmaceutical industry. Two litigations should therefore be recalled: one in South Africa (cfr. South African Pharmaceutical Manufacturers Association v. The Government of South Africa, Case No. 4183, 1998, High Court of Pretoria) and the other in India (cfr. Novartis AG v. Union of India (UOI) and Ors.; Natco Pharma Ltd. v. Uol & Ors.; M/S Cancer Patients Aid Association v. Uol & Ors) which have involved two big pharma. These last two had accused the mentioned States of having implemented and interpreted the clauses of intellectual property limitations present in the TRIPS in a manner which was too extensive, therefore violating the relative constitutional principles of economic liberties. In the two examined disputes, the national judges highlighted the social and other fundamental rights, like the one to life, health and human dignity, legitimizing the economic policies of the countries cited of application of the clauses of limitation of the intellectual property stipulated by the TRIPS.

Western countries failure to join (so far) the sharing platform
The formal launch of the sharing platform and with it the suspension of industrial property rights for pharmaceutical and medical anti-COVID-19 products had been planned for the 29th May 2020. According to what so far communicated by the WHO, the first countries to join the initiative were Argentina, Bangladesh, Barbados, Belize, Brazil, Bhutan, Chile, Dominican Republic, Ecuador, Egypt, El Salvador, Honduras, Indonesia, Lebanon, Luxembourg, Malesia, Maldives, Mexico, Mongolia, Mozambique, Norway, Oman, Pakistan, Palau, Panama, Peru, Portugal, Saint Vincent and Grenadines, Sri Lanka, South Africa, Sudan, Netherlands, Timor Est, Uruguay and Zimbabwe. Still missing are western countries (the majority of EU members and the USA), together with Israel, China, Japan and India, all countries were the world’s big pharma are headquartered. The current list includes, therefore, many developing countries that do not have particularly developed technological, producing and distributing capabilities.

The measures adopted by individual countries against the monopoly of the Covid-19 vaccine
In pandemic’s current context, the compulsory license instrument, however, has not attracted only developing countries. States like Germany, Israel, Ecuador, Brazil and Chile are moving towards compulsory licenses for patents related to the handling of COVID-19, while the United Kingdom and Canada have both stipulated the decriminalization of the exploitation of patents related to COVID-19. The decriminalization would entail the exclusion of counterfeiting crimes regarding COVID-19 patents.
The compulsory license, instead, would have the goal of ensuring equal access to drugs relating to the cure of the pandemic. Other legal systems, including the Italian one, allow the state to rapidly seize any patent due to public need, for an indemnity to be paid to the owner of the industrial property right. This is a real expropriation procedure, through which a so-called “forced” solidarity of the patent’s owner would be secured, thus eliminating the legal monopoly in which this is expressed. It is believed, however, that in taking into account the current situation, pharmaceutical companies would be interested in spontaneously releasing for free or in any case in a “social-friendly way” any exclusive rights on drugs or vaccines anti-COVID-19, thanks to the immense return in image that such an operation would guarantee.

The expropriation procedure of the patent for national utility in Italy
As far as Italy is concerned, art.141 of the code for industrial property (hereinafter, “c.p.i.”) stipulates that industrial property rights, trademark rights excluded, although in progress of registration and patenting, can be expropriated by the State in the interest of the State’s military defense or for other reasons of public need. The State can expropriate the right as a whole or even just the right to use the invention in the national interest and for a specific period. Second paragraph of art. 141 c.p.i. continues by stating that the expropriation can be limited to the right of use for the State needs, without prejudice to the provisions on compulsory licenses, insofar as they are compatible.
National legislation does not regulate in detail the expropriation of industrial property rights, nor has the subject been the focus of case law. In any case, it is clear – from the dictates of art. 141 c.p.i. – that the expropriation of the industrial property right is subject to certain conditions.
First, the expropriation is adopted with a Presidential Decree at the end of a complex legislative procedure. In particular, the expropriation is issued through a Decree of the President of the Republic, following a proposal of the concerning Minister, in concert with the Ministries of Productive Activities, Economy and Finance, after hearing the opinion of the Appeals Commission. Art. 194 c.p.i. provides that the decree should be sent in copy to the Italian patent and trademark Office and then published in the Official Bulletin unless this creates a prejudice. Furthermore, the decree must be notified to other interested parties. Once all the above notifications have been made, the right object to the expropriation is acquired by the Public Administration, which will be able to use it within the time limits and for the duration envisaged. Finally, according to art. 143 c.p.i. the decree must be annotated in the Register of industrial property rights. Contrary to what happens if the expropriation due to military defense reasons, the secret of the object of the industrial property title is not stipulated for reasons of public need.
The Presidential Decree must specify an indemnity in favor of the industrial property rights holder. Such indemnity is calculated based on the market value, after hearing the opinion of the Appeals Commission. However, the legislation does not provide concrete parameters that should be used to estimate the indemnity. In case of non-agreement – art. 143 c.p.i., indeed, provides that the owner of the industrial property right may disagree with respect to the value of the indemnity established by the Decree – the indemnity must be fixed by a panel of arbitrators who will proceed according to fair appreciation, taking into account also the loss of competitive advantage suffered by the owner of the expropriated right.
As mentioned, the expropriation measure, which eliminates or limits the industrial property right, can be adopted only if there are reasons of public need (as well as in the interest of the country’s military defense).
Therefore, it is necessary to understand if needs of this type could arise in the pandemic’s current emergency situation. The question is only apparently superfluous, as, until today, no health emergency and no disease (even cardiovascular or tumour diseases that nonetheless in numerical terms have an impact far superior to all other diseases) has never been recognized as a reason of public need, such as to justify a State intervention for the regulation of patent protection (suspension) or to induce to force the “solidarity” of private entities. In a broad sense, any resources aimed at safeguarding and preserving human life and health could fall within the concept of “public need” almost by definition. At present, it cannot be foreseen whether the WHO’s declaration of pandemic status is such as to justify the possible expropriation of patents concerning COVID-19 drugs or vaccines.
As there is no case law on the subject, the national courts, if requested, will have to resolve the issue through a balanced weighing of the interests at stake, which in this case are private property and economic initiative (art. 41 of the Constitution) and law to substantial equality and health (articles 3 and 32 of the Constitution).
It is interesting to note how an evaluation of this type has already been the subject of a decision made by Lazio’s TAR, in a case that concerned not the expropriation of the industrial property right on drugs, but the duration of the complementary certificates (cfr. TAR Lazio, sez. III del 30/09/2003, n. 7858, in Banca dati online De Jure). In that instance, TAR stated that art. 41 Cost. “is not, however, an absolute right of the personality that therefore overlooks the limits that the Constitution itself, also thanks to the implementation that the ordinary legislator gives from time to time and within the obvious limits of the reasonableness and substantial equality of citizens, imposes for social needs. In principle, economic efficiency, connected to the stability of relationships and legal traffics (especially for long-term ones) is indeed a protected value, but not hierarchically prevalent compared to other social needs. Indeed, the discipline of the economy, which the Constitution wants dictated by the ordinary legislator, must not only be inspired by the intent to pursue immediately economic purposes (increase in production, financial balance, etc.), but also guided by the need to stimulate and favour the process of social transformation, the main lines of which are traced by art. 3, II para”.
In the case cited, the Italian judges recognized the economic initiative as a value protected by the law, considering it, however, hierarchically not prevalent with respect to the principle of substantial equality provided for in art. 3 Const.
Applying this perspective to the current pandemic situation, with a view to ensuring the full implementation of the principle of substantial equality, the right to ensure access to the COVID-19 vaccine for all citizens could be considered a right superior to that of ensuring compensation and the fair return on investment to the vaccine-producing pharmaceutical industry.

Conclusions
In this situation, whether the choices are made at a supranational level (as for the WHO initiative to define a real suspension of rights arising from patents or in any case to define a technical pool that indicates similar solutions in view of the protection of less fortunate sections of the world population), or that they are taken at national level through the initiation of expropriation measures or the granting of compulsory licenses, it will still be necessary to consider carefully, not only on a juridical level, the future implications of eventual initiatives. Indeed, it will be appropriate to seek and find a balance between the protection of investments made by pharmaceutical companies – but also by private or public institutions – and the pursuit of the aim in question, that is facilitated access to the cures and vaccines. This is also to ensure that pharmaceutical companies continue to invest in research and development, especially in the current pandemic context, and that this type of research can still continue to positively attract private capital. It must be said that a just solidarity initiative in the current situation must not however set a precedent for questioning the need for patent protection of pharmaceutical or medical inventions. The pandemic indeed constitutes a completely atypical situation, not comparable to any other and is a situation such as to justify the introduction of a very special exception, that would then not be able to render ineffective or cancel out (rather, reaffirm) a principle of great importance for technical, economic and social development of each country, the principle of patent protection granted to pharmaceutical and medical inventions.

Luigi Goglia, Camilla Macrì


FOOTBALL CHAMPIONSHIP AND COVID-19: THE RESUMPTION AFTER THE FORCED STOP. THE REASONS TO RESTART

26/05/2020

In these days the possible resumption of the Serie A football championship is under discussion, starting – probably – from next June 20, 2020, and the ways to conclude it (including the possible play-off and play-out) are being considered. Since May 4, the 20 Serie A clubs have been operational again with individual training sessions, while from May 20, collective training sessions have resumed, in full compliance with the protocol of the FIGC (Federazione Italiana Giuoco Calcio), recently validated by the Scientific Technical Committee of Civil Protection, which regulates, among other things, how to manage a possible positivity to Covid-19.

 

As all Italians know, as a result of the Coronavirus emergency, the Football Championship is being suspended from the 27th day, which should have been played on 13-14 March 2020 (the previous day had been played only partially). In fact, the DCPM of March 9, 2020 suspended (initially until April 3, 2020) all sporting events and competitions of any order and discipline, in public or private places (except for events organized by international sports organizations, behind closed doors). The Prime Minister’s Decree required sports associations and clubs to carry out appropriate checks to limit the risk of spreading COVID-19 among athletes, technicians, managers, and all accompanying persons.
The suspension was then extended several times with the following Prime Ministerial Decrees of 1 April 2020, 10 April, 26 April and, most recently, 17 May, which extended the suspension of all championships until 14 June 2020.
Currently, the possible resumption is set for 20 June 2020, but the date has yet to be confirmed and a meeting is scheduled for 28 May between the FIGC, Lega Calcio and the Minister for Youth and Sport, Vincenzo Spadafora, who has declared that he will have to decide “if and when” the sports season will restart. The recovery deadline is crucial, considering that UEFA has recommended the conclusion of all national tournaments by 2 August 2020.

The FIGC Protocol
On 19 May 2020, the FIGC’s protocol for the safe resumption of collective football training was finally validated by the Scientific Technical Committee for Civil Protection, which contains the requirements that clubs must comply with in order to resume training.
First, clubs will have to divide the team into “team groups”, each made up of players, coaches, masseurs, physiotherapists, warehousemen and social doctors. It is no longer obligatory for the players to retire without security, unless a positive person is found in the team group, who will necessarily have to be placed in quarantine. The team group will then be subjected to trustee isolation in an agreed structure and undergo clinical evaluation (swabs every 48 hours for two weeks). No member of the group can have external contact, but everyone can continue to train.
As regards the training methods, group work is allowed, including training matches, which should take place as much as possible outdoors: the sessions in the gym should initially be reduced to a minimum. A distance of at least 2 meters must be maintained in the changing rooms and showers will not be allowed inside the sports facilities.
Finally, the Protocol provides for several specific anti-accounting measures:
• coach and technical staff must wear face mask and maintain a minimum distance of 2 meters;
• players must reach the sports facilities with their own means and comply with the anti-accounting measures;
• club must set up a thermoscanner and a saturator at the entrance of the sports center;
• swabs will be carried out at the beginning of the collective activities, to be repeated every 4 days. The same for serological tests, to be repeated every 14 days.
Currently, all clubs are monitoring professionals and staff with coronavirus tests and screenings. The tests carried out after the resumption of individual sessions had negative results for almost all teams, with the exception of 6 positive cases for Fiorentina, 2 for Parma and 1 for Torino (the subjects as prescribed were placed in isolation). The names of the players were not communicated, for privacy reasons.
The FIGC is already at work preparing the new protocol that will govern future matches.
To the measures specified in the protocol may be added the indications contained in the vademecum of the scientific group of sports doctors of Serie A, sent to the clubs as early as the beginning of March 2020, containing the rules to avoid contagion, including not drinking from the same bottle, not eating in the changing room, storing personal items and clothing in personal bags, throwing paper handkerchiefs or other materials used such as patches, bandages, etc. immediately in the appropriate containers, washing hands thoroughly as often as possible, using special care when using common toilets, encouraging the use of automatic dispensers with disinfectant cleaning solutions, both in the changing rooms and in the toilets, not touching eyes, nose or mouth with unwashed hands, coughing into their arms, cleaning their mouths and noses with a handkerchief, airing all the rooms as often as possible, cleaning tables, chairs, taps, avoiding award ceremonies or other forms of contact with the audience, using a single microphone in interviews to be disinfected each time, avoiding fans.

The critical points of the Protocol
1. Expensive compliance: the protocol has been considered very expensive both logistically and economically, and could therefore be guaranteed with difficulty by Serie B clubs (while Serie C and the amateurs have already confirmed the final stop of their respective championships);
2. Swabs: the number of swabs required, considering the frequency described above, is very high (we are talking about tens of thousands of swabs). Therefore there is a risk that it will be difficult to carry out all the required tests, considering that the Italian Footballers’ Association (AIC) has expressly stated that it does not want to take advantage of preferential lanes for medical and health checks;
3. Criminal risk in the event of contagion: if players and staff members are infected there is a real risk that football clubs will be considered civilly liable and its managers criminally liable. Indeed, according to the “Cura Italia” Decree, contagion from Covid-19 can be considered an accident at work, and clubs may be held liable if they fail to demonstrate that they have adopted all the precautions provided for by law (and not just the FIGC protocol).

The reasons to restart
During the COVID-19 tsunami, many people wondered whether it was necessary or appropriate to restart the football championship, given the risks involved in contact sports. However, statistics elaborated by the Istituto Superiore della Sanità two months after the beginning of the contagion, show that the risks for people under 60 years of age are very low, especially when they do not suffer from any pathology. On the other hand, the stop undoubtedly creates significant economic, legal, social, and psychological problems. Let us start with the latter. Sporting activity is a right of everyone, in particular for athletes who, deprived of the possibility of expressing themselves, could suffer considerable damage, also due – for example – to the fact that their health and performance conditions could worsen because of time passing, and particularly in situations of inactivity, to the point that in certain cases some careers could be permanently impaired. Sport is also an important social moment; playing matches in empty stadiums already causes undoubtedly a compression of these social moments. Completely banning them means going beyond compression, and perhaps poses a problem of a fair balance of interests at stake.
Then there are the economic and legal issues.
According to the “2019 Football Report”, published by the FIGC and produced by the Research and Legislation Agency (Arel) and the consultancy firm PricewaterhouseCoopers (PwC), in 2017-2018 the value of production of the three Italian professional championships (Serie A, Serie B and Lega Pro) exceeded 3.5 billion euros for the first time (of which 3 billion euros are attributable to the Serie A championship), an increase of 6% compared to the previous year.
According to the latest FIGC estimates, due to the coronavirus emergency, a loss of €424 million is already expected in 2020 (and €593 million in 2021), in addition to a further €294 million if it is decided to start playing behind closed doors again. The damage could be even greater if the season should be permanently suspended, for an estimated total of almost €800 million. This is certainly a huge damage for an industry that pays around 1.3 billion euros in tax and social security contributions and pays 2 billion euros in salaries to employees. The concrete risks are the bankruptcy of many companies (even 30% of C Series companies, according to unofficial estimates), a sharp drop in employment and a general disaffection of the public.
In addition to the economic damages mentioned above, failure to resume the league could also lead to severe sanctions by UEFA, which has clearly informed its 55 member football associations that, in the event of failure to resume the league at the end of the Coronavirus emergency, the clubs in those leagues will not be admitted to international Champions and Europa League competitions, as participation in the European cups is determined by the sporting results obtained at the end of an entire season.
In this context it must be considered what the closure of the stadiums and the definitive stop of the championship could mean from an economic point of view. Teams will have serious problems maintaining an adequate level of liquidity and will probably be forced to make cuts in players’ compensation (something that some Serie A teams have already started to do). The problems will be exacerbated if PayTv that have acquired the rights to broadcast the matches should face the impossibility of continuing their activities, in the light of a significant number of users who have signed subscription contracts for watching matches on demand.

Other European Championships
Some European championships have already been declared closed and in particular the Ligue 1 (France), Eredivisie (Netherlands), Jupiler Pro League (Belgium) and Scottish Premiership (Scotland).
As far as other nations are concerned, in Germany the Bundesliga resumed on 16 May, behind closed doors. The Deutsche Fußball Liga (DFL) set a maximum limit of 300 people inside the sports facilities and gave teams the opportunity to play a match in another stadium with short notice for legal, organisational and/or security reasons, taking into account that the Coronavirus emergency could take more relevant dimensions in certain areas or regions. In addition, DFL is also considering providing practical help to clubs by ensuring their liquidity.
The English Premiere League is considering restarting from June 12, again behind closed doors and on a neutral pitch, while training in small groups restarted on May 21. Stadiums away from urban areas will be chosen upon request of the police.
Training resumed on May 18th also for the Spanish Liga, but only in groups of 10, with the purpose to start playing again after June 20th. The days of the matches remain to be discussed (the proposal is to play every day of the week) and the times, considering the extremely high temperatures in the summer months, it is also proposed to play at 11pm in some areas.
Finally, in Portugal, the Primeira Liga will restart on May 30, with matches behind closed doors, players and arbiters will be tested the same day of the match. The Portuguese Serie B, however, will not start again.

Conclusions
Covid-19 is certainly a serious emergency, which can neither be minimized nor neglected. However, after an initial phase of understandable surprise and confusion, it now seems necessary to strive for a return to normality when the analysis of the available data, the resources available, and other interests involved suggest a thoughtful balance. Stopping everything clearly diminishes or eliminates contagions. But what is the economic, social, and psychological price? Is it truly impossible to find a system that allows activities to continue, obviously, with the acceptance of a certain level of risk? After all, this is what society normally does in relation to all risks associated with any activities, since none of them is free of risks. Driving a car carries a certain margin of accident risk, even fatal. Cars or driving have not been banned for this reason. Therefore, it is hoped that the same considerations will apply to the COVID-19 emergency and that there will be a restart of the Serie A Championship by June 2020, managed with the appropriate precautions, so that all players and staff members can resume their work, as calmly as possible, and respecting the prescriptions aimed at preventing further contagions.
Besides, as the renowned coach of the national team, Arrigo Sacchi, said, for many people football is the most important thing among the non-important things.

Margherita Stucchi