Getting to grips with European fashion law
Updated: Aug 20, 2018
In order to understand European fashion law, it is first important to get to grips with the basics of European law.
The European Union has three types of laws:
Regulations which automatically apply across all EU countries (although it is possible for them to implement the regulation in national legislation).
Directives which set criteria which EU countries must meet in their national legislation.
Local laws where the EU countries have freedom to determine the law which applies.
The majority of laws in all EU countries are still determined by national legislation (although they are generally subject to some overriding principles such as not favouring the people or businesses of one EU country over another).
The following Regulations and Directives are particularly important for the fashion industry:
EU Trade Mark Regulation - introduces EU trade marks
Community Designs Regulation - introduces EU registered and unregistered designs
General Data Protection Regulation - introduces the EU data protection system
Trade Marks Directive - sets the standards for the national trade marks of EU countries e.g. the French trade mark etc
Enforcement Directive - sets out the remedies which are available if intellectual property rights are infringed in the EU
A tale of two legal systems
Broadly speakings, there are two different legal systems in Europe:
Civil law is the dominant legal approach in continental Europe.
Common law applies across Great Britain, including Scotland and Northern Ireland, and also in the Republic of Ireland and Cyprus.
Malta has a hybrid system which mixes civil and common law .
Civil law’s philosophy is essentially that the law should be set out in writing in a single location. This code sets out the boundaries of the law and the job of the judges is simply to interpret that law rather than develop it.
There are three separate approaches to Civil Law in Europe which, broadly speaking, derive from France, Germany and Scandinavia.
Common law is a system of precedent. This means that every judge's decision can inform the boundaries within which the court must act in the future. The courts operate in a hierarchy so a higher court (e.g. the Court of Appeal or Supreme Court) can overrule a lower court (e.g. the High Court).
This means that lawyers in common law countries have more reading to do because both legislation and judgments are important! It also gives judges more obvious flexibility to reach decisions which are “equitable,” i.e. fair, because they can apply various legal conventions in order to reach a just result.
Other Common Law systems include the USA, Canada, Australia, New Zealand, Hong Kong, India and Singapore.
Spot the difference
Although civil law dominates in Europe, the two systems have become more blurred over time as the EU countries have become more familiar with one another's systems. For example, many of the recent reforms to the English system such as limited disclosure, telephone hearings and decisions on the papers are, arguably, inspired by the Continental approach.