Secretary of the Grand Chamber of the Supreme Court spoke about the role of judgments of the EU Court of Justice in the Supreme Court’s case law

The Association Agreement between Ukraine and the European Union, which entered into force on September 1, 2017, requires the implementation of its provisions through various legal instruments. One of these instruments is the consideration of legal positions expressed in the judgments of the Court of Justice of the EU, which may be used by Ukrainian courts as part of legal reasoning and for interpreting national legislation in light of European values and approaches. Principles derived from the Court’s judgments on similar issues are to be taken into account even when those judgments concern other states.

This was emphasized by Vitalii Urkevych, Secretary of the Grand Chamber of the Supreme Court, during the panel discussion “Agribusiness: Development Strategy in the Context of European Integration” held within the framework of the IX Kharkiv International Legal Forum on September 22–26, 2025 at the Yaroslav Mudryi National Law University.

The speaker highlighted the Supreme Court’s case law regarding the consideration of the Court of Justice of the EU’s decisions. In particular, in its ruling of August 3, 2022 in case No. 910/9627/20, the Grand Chamber of the Supreme Court, when concluding that the tariff for electricity supply services was contrary to the prohibitions established by Article 41 of the Treaty Establishing the Energy Community, referred to the judgment of the Court of Justice of the EU of December 6, 2018 in FENS v Slovak Republic, C-305/17. In that judgment, the Court held that Slovak legislation requiring electricity exporters to pay transmission service tariffs violated EU law provisions corresponding to Article 41 of the Energy Community Treaty. The Court noted that customs charges are prohibited “regardless of the purpose for which they were introduced or the destination of the revenue obtained from them”. As the Grand Chamber of the Supreme Court observed, this judgment of the Court of Justice of the EU is relevant to the issue of tariffs for electricity transmission and dispatch services in Ukraine.

When considering the case on recognizing a trademark as well-known (judgment of April 17, 2024 in case No. 910/13988/20), the Grand Chamber of the Supreme Court referred to the case law of the Court of Justice of the EU obiter dictum, not as a source of law, but to illustrate the legal significance that the good faith of registering a conflicting sign may have in limiting the well-known mark holder’s right to protection. In its judgment of September 22, 2011, in Budějovický Budvar, národní podnik v Anheuser-Busch Inc., C-482/09, the Court interpreted the doctrine of acquiescence in EU law. As noted by the Grand Chamber, the doctrine of “acquiescence,” which is recognized in EU law, has not been incorporated into Ukrainian legislation; however, the Supreme Court refers to its interpretation in EU law to illustrate that, in the field of trademark protection and enforcement, it may be possible — and even appropriate to ensure uniformity among EU Member States — that two owners of trademarks containing identical signs, who have long used them to market their products, may continue to use those trademarks in good faith.

The Supreme Court also referred to the case law of the Court of Justice of the EU in case No. 910/8781/23. In that case, the SC Grand Chamber concluded that a trademark registration must be cancelled (the certificate must be terminated early) if the trademark has not been put to genuine use in the relevant territory (not used in Ukraine) for the goods or services for which it was registered for an uninterrupted period of five years. The running of this five-year period of non-use as a ground for early termination does not depend on a change of ownership.

In supporting these conclusions, the Grand Chamber noted that similar provisions on cancelling trademark rights for non-use during a five-year period are also contained in Regulation (EU) No. 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the EU Trade Mark (Art. 58). The case law of the Court of Justice of the EU demonstrates that, within this five-year period, the use of a trademark by any of its owners counts as use, not only by the most recent one (for example, the judgment of October 13, 2021, in Markus Schneider v European Union Intellectual Property Office, T-12/20).

Vitalii Urkevych’s presentation is available at the following link: https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Prezent_rishennya_sudu_ES.pdf.