The Supreme Administrative Court in its judgment of 21 May 2010 case file II FSK 153/09 held that the allegations made in the cassation complaint are key issues for identyfing the boundaries of a given case. The Supreme Administrative Court shall decide the case within the scope of a cassation complaint, examining ex officio only the invalidity of the proceedings. The legitimacy of cassation complaint shifts from the legitimacy of allegations that were raised in it, which should be demonstrated by appropriate justification. The exclusion by the Voivodeship Administrative Court of binding interpretation of law in a given case, that is based on article 153 of the PBAC, is a violation of law, in particular the democratic rule of law provided in article 2 of the Polish Constitution.
Archive for: case law
Procedural law, case II FSK 153/09
June 11th, 2010, Tomasz RychlickiPersonal rights, case I ACa 572/11
June 5th, 2010, Tomasz RychlickiOn 18 January 2010, Michał Okonek, the owner of MAP1 company, filed a petition to the court with a request to order ParaRent.com Wawrzyniak Sp. j. company seated in Szczecin, to block access to the thread entitled “a suit for the use of a part of a map” which is available at www.forumprawne.org website (http://forumprawne.org/prawo-autorskie/501-pozew-za-wykorzystanie-fragmentu-mapy.html) operated by ParaRent.com. Mr Okonek also requested the court to prohibit ParaRent.com to publish of new content concerning Michał Okonek at foras available at forumprawne.org website. Mr Okonek pointed out that ParaRent.com allows its users for posting and sharing information that unjustly accuse him of extorting money, making false statements, misleading the courts and prosecution, intimidation of Internet users, even for distributing of pornography. Moreover, users of forumprawne.org called Mr Okonek as the swindler and the parasite, while he only uses the right to sublicense the use of copyrighted works such as digital maps.
The District Court in Szczecin in its decision of 4 February 2010, case file I Co 26/10 sided with Mr Okonek and issued the order blocking the aforementioned thread. ParaRent decided to appeal.
The Appellate Court in Szczecin in its decision of 18 May 2010, case file I ACz 296/10 overruled the ban. The Court held that in cases filed against the public media, for the protection of personal rights/property, the court may refuse to grant an injunction against publication of given information if the important public interest opposes such injunction/ban.
Michał Okonek filed another lawsuit against ParaRent.com, for the protection of personal rights and compensation. The case was linked with a blocked thread. The District Court in Szczecin VIII Economic Division in its judgment of 5 May 2011 case file VIII GC 106/10 dismissed the complaint. The Court ruled the administrator of forumprawne.org website cannot be held responsible for comments that appeared on his website, unless Mr Okonek proves that the content of posts/comments was illegal, and the fact that the administartor had knowledge regarding such posts or comments, or received information from a reliable source regarding such posts or comments, and that the administrator did not fulfill his duty to disable access to such illegal content. All these prerequisite must be met together. The Court ruled that the administrator cannot arbitrarily interfere with the content published by users. These limits are set by the TOS of the forum website and the law. The Court noted that too much interference may lead to violation of freedom of expression, and thus it may also be an infringement of personal interests of users. The Court has also interpreted the meaning of the “credible information” of the illegal character of the stored data as provided in the Article 14 the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended.
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.
For the adoption of the credibility of information, it is necessary to show that on the basis of credible information, the ISP had an objective opportunity to assess the illegality of data placed on the Internet by the customer. A different interpretation – that each request of an interested person (legal or natural) results in receiving of credible information of the illegal character of the stored data, would cause that, in principle, anyone whose activities fall within the online forum discussion, could remove data with reference to the violation of personal interest, and it would end any discussion. As the Court noted, such situation would be against the principle of freedom of expression and the essence of Internet activity. The Court also ruled that a complext topic on Map1 actions against Internet users, which appeared in a short period of time shows great interest in the subject and proves the difficulties of the current monitoring, which, moreover, is not a responsibility of the ISP. The Administrator is not a forum editor, the users of this forum are themselves. Mr. Okonek became a public figure and therefore he should more callous. The Court decided that the administrator had acted properly moderating only part of the disputed posts.
Mr Okonek appealed. The Appellate Court in Szczecin in its judgment of 26 October 2011 case file I ACa 572/11 dismissed the complaint.
Internet domains, case C-569/08
June 3rd, 2010, Tomasz RychlickiThe Court of Justic of European Union in its judgment of 3 June 2010, case C‑569/08, Internetportal und Marketing GmbH v. Richard Schlicht, ruled on bad faith registration of EU domain names.
1. Article 21(3) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration must be interpreted as meaning that bad faith can be established by circumstances other than those listed in Article 21(3)(a) to (e) of that regulation.
2. In order to assess whether there is conduct in bad faith within the meaning of Article 21(1)(b) of Regulation No 874/2004, read in conjunction with Article 21(3) thereof, the national court must take into consideration all the relevant factors specific to the particular case and, in particular, the conditions under which registration of the trade mark was obtained and those under which the .eu top level domain name was registered.
With regard to the conditions under which registration of the trade mark was obtained, the national court must take into consideration, in particular:
- the intention not to use the trade mark in the market for which protection was sought;
- the presentation of the trade mark;
- the fact of having registered a large number of other trade marks corresponding to generic terms; and
- the fact of having registered the trade mark shortly before the beginning of phased registration of .eu top level domain names.
With regard to the conditions under which the .eu top level domain name was registered, the national court must take into consideration, in particular:
- the abusive use of special characters or punctuation marks, within the meaning of Article 11 of Regulation No 874/2004, for the purposes of applying the transcription rules laid down in that article;
- registration during the first part of the phased registration provided for in that regulation on the basis of a mark acquired in circumstances such as those in the main proceedings; and
- the fact of having applied for registration of a large number of domain names corresponding to generic terms.
Trade mark law, case VI SA/Wa 274/10
June 1st, 2010, Tomasz RychlickiOn 14 March 2005, the Polish company PMB S.A. from Białystok applied for “dębowa mocno wędzona” (oak heavily smoked) trade mark Z-292377, for goods in class 29 such as meats, smoked products and offal products.
The Polish Patent Office denied to grant a right of protection and PMB filed a complaint to the administrative court. The Voivodeship Administrative Court in Warsaw in a judgment of 14 April 2010, case file VI SA/Wa 274/10, rejected the complaint. According to the Court, in this case, the PPO correctly held that PMB has not shown that the sign has acquired distinctiveness. As it was clear from case files, the only evidence provided by PMB was statements of sales of products marked with the questioned sign as of January 2005. The issue of acquisition of secondary meaning (acquired distinctiveness) is taken into account together with all the circumstances of the presence of a sign on the market, including such as: market share, the intensity, geographical extent, duration of the use of a trade mark, investments in advertising, the percentage of a relevant group of customers who recognize the sign as an indication of origin from a particular entrepreneur, etc. Such evidences must come prior to the date of filing of a trademark application with the Polish Patent Office. The Court commented on the Community case law in which the evidence of secondary meaning is also allowed from the period after the date of trade mark application, if they show that acquired distinctiveness already existed at that date.
This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.
Polish patent attorneys, case I OZ 356/10
May 30th, 2010, Tomasz RychlickiThe Supreme Administrative Court in its judgment of 17 May 2010 case file I OZ 356/10, held that if legal representative refuses to prepare and file an appeal because he or she believes that such appeal would be unfounded, and informs the party, giving a proper opinion in this matter, this must be regarded as giving up the cassation complaint by a represented party, since a party has no standind in this area because the appeal must be made by a legal representative only under pain of dismissal of the action. The entitled representatives to file a cassation appeal are only these mentioned in the Law on proceedings before administrative courts, and so, in particular, advocates and legal advisors (radca prawny). In addition, the cassation complaint may also be made by the tax consultant – on tax obligations, and in matters of industrial property – by the patent attorney. The obligation to file a cassation by a professional results from two-instances of the administrative judiciary and to ensure more efficient proceedings. The obligation to file a cassation by a professional results from two-instances of the administrative judiciary and to ensure more efficient proceedings. This requirement was also introduced in order to ensure an adequate level of the form and content of a cassation complaint, and thus to provide a party the certainty that there will be no risk of rejection of its complaint. The knowledge of the regulations and enforcement procedures that are applicable to judicial proceedings can be expected and required from a professional representative. The refusal to prepare and to file a cassation complaint is not subject to review by the administrative courts. However, if in doubt, a party may apply to the competent authority of the professional autonomy requesting to review the merits of such action.
Industrial design, case VI SA/Wa 506/10
May 27th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment of 27 may 2010 case file VI SA/Wa 506/10 held that due to the fact that the Polish Patent Office did not timely corrected the deficiency of the reasons of its decision and it did not decided and ruled on this issue in its response, although irregularities were indicated in the complaint, the Court had to decide at this stage of proceedings that the contested decision infringes the rules of administrative proceedings in the aspect that could significantly affect the outcome of the case.
This judgment concerned the industrial design “Zestaw podstawek reklamowych Star Fala” (in English: Set of advertising coasters Star Fala) Rp-11779.
This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.
See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.
Industrial design, case VI SA/Wa 1038/09
May 21st, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in a judgment of 23 February 2010, case file VI SA/Wa 1038/09, held that the Polish Patent Office wrongly ruled that the admission of evidence based on the testimony of a witness will not bring anything new to the case, by stating that these witnesses were not credible evidence that the subject of disclosure in the shop (boards) was questioned industrial design. The VAC held that such ruling has the nature of prejudice and is contrary to the provisions of administrative procedure because the PPO made the assessment of usefulness and credibility of evidence, of which it has not get acquainted with.
This judgment concerned the industrial design “Tablica informacyjna” (in English: Information table) Rp-11243. The judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.
Tax law, case I FSK 1444/09
May 21st, 2010, Tomasz RychlickiThe Polish entrepreneur asked the Director of the Tax Chamber in Kraków, whether the inclusion in the billing of VAT of the amount of tax charged on the purchase of goods and services on the basis of invoices and correction invoices received by e-mail or fax, not in the form of electronic invoices with digital signature, is correct. The Director ruled that such interpretation is incorrect. The Company did not agree with this decision and filed a complaint to the administrative court. The Voivodeship Administrative Court (VAC) in Kraków in a judgment of 17 March 2009, case file I SA/Kr 97/09 dismissed the case. The Company filed a cassation complaint. The Supreme Administrative Court in a judgment of 20 May 2010, case file I FSK 1444/09, ruled that invoices that were sent via fax or e-mail are equivalent to these sent via traditional mail. What’s more important, such invoices do not need any electronic signature.
Tax law, case III SA/Wa 1823/09
May 17th, 2010, Tomasz RychlickiThe Director of Tax Control Office in Warsaw ruled that the amounts of cash referred to as a “license to exercise the media rights” that were received by Legia football club from the Polish Football Association (PZPN), should be subject to tax on goods and services. Legia argued that such an agreement is not a contract of sale of rights, but the license agreement. However, the Director has found that the PZPN was the sole owner of intangible (economic and non econimic) property rights to the Polish national championships. To be the sole owner of the rights to football matches, PZPN had to acquire these rights. Therefore, Legia had to transfer these rights in some way, and that included proper fee.
The Director referred to a series of court decisions and pointed out that the sports’ event, namely football match does not constitute a work under the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631. Legia as a football club does not take action on the creative nature. In the opinion of the Director it is not precluded that on the legal market may exists licensing agreements relating to intangible property, other than works defined in the ARNR.
Only article 43(1) pt 13 of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535, includes a reference to the ARNR.
Art. 43. 1. The following shall be exempted from the tax:
13) licensing or authorization to use a license, as well as assignment of the proprietary right within the meaning of the copyright law – in relation to computer programmes – free of charge, for educational facilities, referred to in paragraph 9.
That provision indicates the grant of the license or authorization to use copyright licenses and the transfer of property rights under copyright law (the ARNR). The absence of such references in other regulations means that the transfer of copyright may affect the rights of the author, or a sole owner of any intangible property, which does not have the characteristics of the copyrightable work. A similar situation will occur in the case of a license. Wherever there is no reference to copyright law (ARNR) it will also mean the license agreement for the use of intangible property other than the copyrightable work.
The Tax Office ruled that Legia transfered “media rights” to the PZPN, so the Association could fully manage of them, and so enter into an agreement concerning the disposition of such rights. The rate of the tax shall be 22% for such service. The tax shall become chargeable upon the receipt of all or part of payment, though not later than upon the expiry of the due date specified in the contract or invoice – for the performance in the territory of the country of services referred to in article 27(4) pt 1 of the GSTA.
4. The provision of paragraph 3 shall apply to the following services:
1) sale of rights or granting of licenses or sublicenses, transfers and assignments of copyrights, patents, trademarks, letting joint trademarks or joint guarantee marks for use, or other related rights.
Legia did not agree with the decision of the Director of the Tax Control Office and filed a complaint to the administrative court. It was rejected by the Voivodeship Administrative Court in Warsaw in its judgment of 26 March 2010 case file III SA/Wa 1823/09.
Trade mark law, case II GSK 555/09
May 17th, 2010, Tomasz RychlickiSome P.T. Readers may remember the story described in the post entitled “Trade mark law, case VI SA/Wa 2376/08“. The rest was as follows. The Free Trade Union of Drivers of the Republic of Poland (FTUD) and its representative disagreed with the decisions of the Polish Patent Office and the Voivodeship Administrative Court and filed a cassation complaint to the Supreme Administrative Court. The FTUD claimed that the drawing of an eagle included in its sign differs from the National emblem, because it has different colors and is on a different background. The Union also argued that the sign emphasizes its national identity, and not link with the state bodies. According to the Union, the PPO already registered many characters that consist of national symbols that were artistically altered. The refusal of registration of the questioned sign limits the competition argued the Union.
The Supreme Administrative Court in a judgment of 21 April 2010, case file II GSK 555/09, dismissed the cassation appeal. According to the SAC the provisions of the IPL and the Act on Coat of Arms, Colours and Anthem of the Republic of Poland should be read together. Neither the emblem or image of the Eagle established as the emblem and symbols of the Republic of Poland shall not be subject to protection rights. This applies also to similar signs – said Judge Małgorzata Korycińska. The judgement is final.
Polish patent attorneys – substitution and delivery of documents
May 16th, 2010, Tomasz RychlickiAccording to articles 240 and 241 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments, a representative shall be authorised to appoint a substitute (substitution).
Article 240
1. Except for the persons referred to in Article 236(2), a representative shall be authorised to appoint a substitute (substitution).2. Authorisation by another joint right holder shall not be required for performing conservatory action.
Article 241
1. Where two or more persons are parties to a proceeding and no representative has been appointed, the persons concerned shall be required to indicate one address for service. Failing to indicate such address, the address of the person named first in the application or in another document, on the basis of which the proceeding is instituted, shall be deemed to be that address.2. At a party’s request, the Patent Office shall also send letters addressed according to paragraph (1) to the addresses additionally indicated by that party. This provision shall also apply accordingly, where only one person who has appointed a representative is a party to the proceeding.
As the effect of establishing a substitute, the same relationship, which was established between a party and a patent attorney is also created between a party and a substitute, while maintaining the existing powers of attorney. This means that the party has two equivalent proxies since the establishment of an effective substitution. See for instance opinions presented by the Supreme Court Civil Chamber in a judgment of 13 February 2004, case file IV CK 269/02, the Supreme Court Civil Chamber in a decision of 7 November 2006, case file I CZ 78/06, or judgment of the Voivodeship Administraive Court in Poznańof dnia 20 February 2007, case file I SA/Po 1432/06.
On the basis of article 40 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, where a party has established a representative, all documents are delivered to the proxy and not a party.
Article 40.
§ 1. Documents shall be served on the party to proceedings, and if the party is acting by a representative – on that representative.
§ 2. If a party to proceedings has appointed an attorney then documents shall be served on the attorney.
§ 3. If a case has been commenced at the instigation of two or more parties the documents shall be served on all parties, unless the application indicates that one of them is authorised to receive service.
Due to the limitation established for granting the substitute power of attorney only to patent attorneys and provisions of article 237(1) of the IPL which provide that there can be only one proxy for one legal action, in case of existence of a substitute, all correspondence will be delivered to one person – the agent or a substitute.
Article 237
1. In the performance of one act a party may be represented by one natural person only.2. A power of attorney shall be in writing and shall be included in the files on performance of first legal act.
3. Where the power of attorney covers two or more cases, it shall be included in the files of that of the cases, in respect of which the first act is performed by the representative. When acting in other cases covered by the power of attorneys, the representative shall be required to furnish a certified copy of the power of attorney.
4. A patent agent shall be allowed to certify himself a copy of the power of attorney granted to him.
5. Failing to pay a due stamp duty for the power of attorney, the Patent Office shall invite the representative to make relevant payment and in case it should not be made, it shall additionally invite the party to confirm, within the fixed time limit, the acts performed by the representative. Failing to observe the fixed time limit, the provision of Article 223(4) shall apply accordingly.
The decision in this regard will be taken following an assessment of attorney documents and attorney substitution. However, in the case of granting substitution of confluence with the scope of powers of attorney and without indicating an address for delivery of documents, the Polish Patent Office will continue to deliver documents only to a substitute.
Personal rights, case II CSK 580/09
May 1st, 2010, Tomasz RychlickiThe Supreme Court in a judgment of 6 May 2010, case file II CSK 580/09, ruled that if there is a high probability of irreversible impairment of the fetus, the mother can decide whether to remove the pregnancy. The Court has confirmed that the decision on the abortion is every mother’s personal right/interest, and in the case of an infringement of such right, a woman has the right to seek the redress for the harm and damages to compensate for both parents increased costs of raising a handicapped child.
Advertising of pharmaceuticals, case GIF-P-R-450/147-3/ZW/09/10
April 28th, 2010, Tomasz RychlickiThe Main Pharmaceutical Inspector (MPI) questioned the legality of a few ads that were aired on different TV channels. See for instance the decision of the the Main Pharmaceutical Inspector of 4 March 2010, no. GIF-P-R-450/147-3/ZW/09/10, with regard to indication of a sponsor in “The producer of Guajazyl – cough syrup, invites to a forecast” (in Polish “Na prognozę pogody zaprasza producent Guajazylu – wykrztuśnego syropu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 10 March 2010, no. GIF-P-R-450/141-4/ZW/09/10, with regard to indication of a sponsor in “The producer of Pectosol – herbal preparation on cough, invites to a program” (in Polish: “Na program zaprasza producent Pectosolu – ziołowego preparatu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 6 January 2010, no GIF-P-R-450/126-3/ZW/09/10, with regard to indication of a sponsor in “The producer of DEXAPINI invites to a forecast. DEXAPINI – goodnight without a cough” (in Polish: “Na prognozę pogody zaprasza producent syropu DEXAPINI. DEXAPINI – dobranoc bez kaszlu”).
According to article 17(1) of the Polish Act on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji) of 29 December 1992, Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with later amendments, sponsored programmes or other broadcasts shall be identified as such by sponsor credits at their beginning or end. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, the image of a single product or service. According to article 4 pt. 7 of the LOB, the “sponsorship” shall mean a direct or indirect financing or co-financing of the production or transmission of a programme or other broadcasts by an entity other than the broadcaster or producer of the programme, with a view to establishing, enhancing or promoting the renown of the name, business name, product or service, trademark. The MPI held that publishing of information relating to the product, not the manufacturer’s is basically beyond the scope of sponsorship.
The MPI ruled that these sponsorship spots were illegal advertising of the medicinal products.
See also “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.
Trade mark law, case II GSK 344/09
April 20th, 2010, Tomasz RychlickiThis is the continuation of the history described in the post entitled “Trade mark law, case VI SA/Wa 1388/07“.
The Polish Patent Office (PPO) and the Voivodeship Administrative Court (VAC) ruled that EAU DE TOKYO trade mark is totally dissimilar to KENZO or to L’eau par Kenzo trade marks. The mere fact of the use of the word eau did not predict similarity of questioned signs, because the word as part of the expression of eau de toilette, in relation to cosmetics does not have any distinctive character. The PPO and the VAC did not agree with arguments that MGT Parfum Création wanted to use the reputation that was understood as the good name of KENZO.
According to the PPO and the VAC, the use of packaging that is confusingly similar to the packaging used by KENZO could only give rise to claims of delict of unfair competition which is decided in the civil proceedings. The very fact of any dishonest conduct of the holder of the disputed registration cannot be interpreted that the trade mark application has been made in bad faith. Even if the court agreed that events which took place in 2006, i.e. MGT actions based on producing EAU DE TOKYO packaging that looked alike L’eau par Kenzo perfumes, and advertising of its products with “the type of Kenzo perfume” slogan, could raise doubts about compliance of such actions with the rules of fair competition, but these were not sufficient facts to consider that in 2000, MGT had the intention to act dishonestly – in bad faith.
The Supreme Administrative Court (SAC) in a judgment of 26 January 2010,case file II GSK 344/09, ruled that the PPO has properly established and the VAC correctly agreed to facts, that at the time of application for the protection right for EAU DE TOKYO R-153843 trade mark, the bad faith could not be attributed to MGT Parfum Création.
Tax law, case III SA/Wa 396/10
April 18th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 April 2010, case file III SA/Wa 396/10, ruled that there is no legislative impediment to the existence of a mixed system for the storage of invoices, which consists of sending an invoice in paper and storage of its electronic copies with the option to print at the request of a legitimate authority. Such an interpretation was corroborated by teleological considerations, environmental and economic. According to the VAC the different findings would lead to a breach of the principle of proportionality, as set out in article 5(3) of the Treaty on European Union.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 83 of 30 March 2010. PDF files.