Keyword advertising and european trade mark law

Prof. Charles Gielen^

1. 
   If you type internet advertising on any of the Google websites you will get millions of sites explaining how advertising on the internet works and/or offering tools to increase the effectiveness of online advertising: one of the sites has the following opening sentence "Search engine marketing is a specialisation in its own right." As we all experience on an almost daily basis, internet advertising is used abundantly. I will not be discussing the phenomena of spam e-mails and unsolicited pop-ups and advertising banners, the mere thought of which, by the way, is enough to put me in a bad mood. Rather, I will be focusing on the phenomenon of keywords, the latter being the system that is used to place sponsored links on pages containing search results, and, specifically, on the question as to what role European trademark law plays in this regard. I will discuss the impact of the decisions of the European Court of Justice in the Google-cases¹ and the Bergspechte-², Portakabin-³ and Interflora-⁴cases.
   

2. 
   Let me start by highlighting two important questions that arise under trade mark law. In doing this I will refer to the relevant provisions of the First Directive to approximate the laws of the Member States relating to Trade Marks (hereinafter: Directive).⁵ The first question is: does the use of a competitor's trade mark by an advertiser or a search engine operator of that trade mark as a keyword legally constitute use of the mark within the meaning of Article 5(1)(a) and 5(2), or does it fall under what is provided for in art. 5(5) Directive? If yes, the second question is: does it constitute use in relation to goods or services within the meaning of Article 5(1)(a), (b) or Article 5(2) or does it fall under Article 5(5), i.e. use for purposes other than those of distinguishing goods or services?⁶
   

3. 
   If we look at the definition of "use" given by Article 5(3) Directive it seems as if the legislator had a broad idea of the types of use. Pursuant thereto, "use" includes the mere affixing of a sign to goods or packaging and the use of the sign on business papers and in advertisements. From these examples, it can be seen that "use" can be interpreted according to the word's plain-language meaning. These examples also show that the use of the sign need not be visible for the public. It is generally accepted that the affixing of a trade mark to goods that are destined exclusively for export and are not seen by the general public in the country of export constitutes "use" of that trade mark. For this reason, the inclusion of another party's trade mark in the source of one's website or in some other hidden part of the site certainly falls within the definition of "use". In addition it could, if necessary, be classified as use on business papers or in advertisements; a website can, in my opinion, certainly be considered as the latter.
   

4. 
   In assessing whether the use of keywords is something that can be opposed one will need to make a distinction between the activities of search engines on the hand and of advertisers on the other. In the Google-cases that distinction is clearly made. Let us first look at the position of a search engine operator. The ECJ first asked itself whether a search engine is acting in the course of trade. The answer is clearly: yes, since it is common ground that a commercial activity is carried out with a view to economic advantage when it stores as keywords, for certain of its clients, signs which are identical with trade marks and arranges for the display of ads on the basis of those keywords. However the ECJ concluded that a search engine in doing so is not using a mark. For that to occur it is necessary that the mark is used in own commercial communication.⁷ According to the Court such a search engine allows its clients to use signs which are identical with, or similar to, trade marks, without itself using those signs. That conclusion is not called into question by the fact that that service provider is paid by its clients for the use of those signs. The fact of creating the technical conditions necessary for the use of a sign and being paid for that service does not mean that the party offering the service itself uses the sign. Interesting question is whether this conclusion is also valid in case the search engine actively promotes or suggests the use of trade marks as keywords, or if it proposes advertisement texts containing certain trade marks. To the extent to which it has permitted its client to make such a use of the sign, its role should be examined from the angle of other rules of law such as those in Section 4 of Directive 2000/31 (the so-called E Commerce Directive)⁸, comprising Articles 12 to 15 and entitled ‘Liability of intermediary service providers.’ I will briefly deal with this type of liability at the end of this article. So, the conclusion is that a search engine by selling trade marks as keywords is not using the marks. It has not yet been decided whether this is the same if a search engine actively suggests trade marks as keywords.
   

5. 
   With respect to the advertiser the Court had no difficulty in accepting that the advertiser purchasing the referencing service and choosing as a keyword a sign identical with another’s trade mark, uses that sign in the course of trade within the meaning of that case-law. From the advertiser’s point of view, the selection of a keyword identical with a trade mark has the object and effect of displaying an advertising link to the site on which he offers his goods or services for sale. Since the sign selected as a keyword is the means used to trigger that ad display, it cannot be disputed that the advertiser indeed uses it in the context of commercial activity and not as a private matter.
   

6. 
   But the next question is whether the use of a mark as a keyword is use ‘in relation to goods or services.’ If it is, such use falls within the ambit of art. 5(1) and (2), providing for harmonized infringement criteria. If it is not, it could fall under art. 5(5) which is outside of the scope of harmonization and cannot be dealt with by the ECJ. This issue of use in relation to goods and services has been dealt with by the ECJ in a number of decisions culminating in the Adam Opel/Autec judgment saying that art. 5(1) only applies when the relevant trademark is used to distinguish the goods of the other party, not those of the trademark holder himself.⁹ But then the question came up what to do with the use of a trademark in comparative advertising. In such a case the advertiser uses the mark of his competitor to distinguish the goods of the latter, not of him. The ECJ had to come up with a construction to avoid such use falling outside the harmonized principles of trademark law. In the recent O2/Hutchison-case¹⁰ the solution of the ECJ regarding the use of the trademark of someone else in comparative advertising is quite surprising. In comparative advertising the trademark used by the advertiser is not made to distinguish his goods and services but those of his competitor. The ECJ upheld the rationale of Adam Opel/Autec-case by ruling that the use by an advertiser, in a comparative advertisement, of a sign identical with, or similar to, the mark of a competitor for the purposes of identifying the goods and services offered by the latter can be regarded as use for the advertiser’s own goods and services for the purposes of Article 5(1) and (2). The reason given is that the advertiser seeks to distinguish his goods and services by comparing their characteristics with those of competing goods and services. Whatever one can say about this rather strange reasoning, it was also applied in similar terms in the Google-case.¹¹ The court held that when advertising links to sites offering goods or services of competitors of the proprietor of that mark are displayed beside or above the natural results of the search, the internet user may, if he does not immediately disregard those links as being irrelevant and does not confuse them with those of the proprietor of the mark, perceive those advertising links as offering an alternative to the goods or services of the trade mark proprietor. In that situation, characterised by the fact that a sign identical with a trade mark is selected as a keyword by a competitor of the proprietor of the mark with the aim of offering internet users an alternative to the goods or services of that proprietor, there is a use of that sign in relation to the goods or services of that competitor. If in the circumstances of the case consumers do not see the goods or services as an alternative to the goods or services of the trademark owner, but, on the contrary, the advertiser seeks to mislead internet users as to the origin of its goods or services by making them believe that they originate from the proprietor of the trade mark or from an undertaking economically connected to it, the Court’s reasoning is, that there still is use in relation to goods or services where the use is in such a way that a link is established between that sign and the goods marketed or the services provided by the third party.¹² The conclusion therefore is that use of a trademark by an advertiser falls with the meaning of use in relation to goods or services within the meaning of art. 5(1) or (2).
   
7. 
   In Portakabin it was decided that for the question whether there is use of a trademark in relation to goods or services it is not relevant whether the goods or services are offered for sale in the sponsored link or on the website to which the advertisement is linked. The Court says: That link and commercial message are concise and, in general, do not enable the advertiser to make specific sales offers or to provide a comprehensive overview of the types of goods or services which it markets. That circumstance does not, however, alter in any way the fact that the advertiser, having chosen as a keyword a sign identical with another person’s trade mark, intends that internet users who enter that word as a search term should click on its advertising link in order to find out about its offers.¹³
   

8. 
   Once having established that the advertiser by buying a trademark as a keyword is using that mark in the course of trade in relation to goods and services, the most important question is whether or not such use can be opposed. Let me first deal with the use by the advertiser of an identical trademark as a keyword. Reminding us of its decisions in among others the cases Arsenal/Reed¹⁴ and L’Oreal/Bellure¹⁵ the court says: The exclusive right under Article 5(1)(a) … was conferred in order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade mark can fulfil its function. The exercise of that right must therefore be reserved to cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark. The Court repeated: Those functions include not only the essential function of the trademark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising.¹⁶ It is interesting that the court clearly sees art. 5(1)(a) as giving a broader protection than art 5(1)(b) which grants protection against confusing use of a trademark or similar sign thereby only protecting the origin function.¹⁷ It is questionable whether art. 5(1)(a) Directive was meant to give such a broad protection. If one looks at art 16(1) TRIPS-Treaty providing that in case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed, it seems that the only function protected in such a case is the origin function. As I said, in Google the court refers to all the different functions of a trade mark, but it is rather strange that the Court without any specific reasoning rules that in this case only the origin and advertising function need to be examined.¹⁸ Arguably also the investment function is at stake. As the Court recognizes in para. 94 it is plausible that the proprietor of a trade mark may register its own trade mark as a keyword with a referencing service provider in order to have an ad appear under the heading ‘sponsored links’. Where that is the case, the proprietor of the mark must, as necessary, agree to pay a higher price per click than certain other economic operators if it wishes to ensure that its ad appears before those of those operators which have also selected its mark as a keyword. Furthermore, even if the proprietor of the mark is prepared to pay a higher price per click than that offered by third parties which have also selected that trade mark, the proprietor cannot be certain that its ad will appear before those of those third parties, given that other factors are also taken into account in determining the order in which the ads are displayed. This means that the trade mark owner in order to have a better position in the hitlist than advertisers who purchase the trade mark as keyword, is obliged to buy his own trade mark as a keyword and invest simply because others use his trade mark. So, arguably the investment function is at stake, since the proprietor needs to invest more in his mark because of the use by his competitors of his mark as a keyword.
   

9. 
   In para. 91 and following the Court discusses the question whether the origin function of the trade mark is adversely affected. The court says that this depends in particular on the manner in which that ad is presented. The function of indicating the origin of the mark is adversely affected ´if the ad does not enable normally informed and reasonably attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.´ In such a situation, which is, moreover, characterised by the fact that the ad in question appears immediately after entry of the trade mark as a search term by the internet user concerned and is displayed at a point when the trade mark is, in its capacity as a search term, also displayed on the screen, the internet user may err as to the origin of the goods or services in question. In those circumstances, the use by the third party of the sign identical with the mark as a keyword triggering the display of that ad is liable to create the impression that there is a material link in the course of trade between the goods or services in question and the proprietor of the trade mark. So, much depends on how the ad looks like and if any doubt as to the origin of the ad exists, the origin function of the mark is affected.
   

10. 
    In the context of the discussion of the origin function of a mark, the Court also points at the transparency obligation that exist for advertisers on the web which obligation follows from the aforementioned E-Commerce Directive. This Directive lays down the rule that the natural or legal person on whose behalf a commercial communication which is part of an information society service is made must be clearly identifiable.¹⁹ In linking this obligation to trade mark law, the Court said that where the ad, while not suggesting the existence of an economic link, is vague to such an extent on the origin of the goods or services at issue that normally informed and reasonably attentive internet users are unable to determine, on the basis of the advertising link and the commercial message attached thereto, whether the advertiser is a third party vis-à-vis the proprietor of the trade mark or, on the contrary, economically linked to that proprietor, the conclusion must also be that there is an adverse effect on that function of the trade mark. To me, it is not entirely clear what this ‘extra’ transparency obligation means in relation to what is said in para. 91 of the judgment.
    
11. 
    With respect to the advertising function of a mark the Court ruled that the proprietor can only act where the use of the mark as a keyword adversely affects the proprietor’s use of its mark as a factor in sales promotion or as an instrument of commercial strategy.²⁰ Although the Court acknowledges that such use is liable to have certain repercussions on the advertising use of that mark by its proprietor and on the latter’s commercial strategy, those repercussions of use by third parties of a sign identical with the trade mark do not of themselves constitute an adverse effect on the advertising function of the trade mark.  The situation covered in the questions referred is that of the display of advertising links following the entry by internet users of a search term corresponding to the trade mark selected as a keyword. It is also common ground, in these cases, that those advertising links are displayed beside or above the list of the natural results of the search. Finally, according to the Court, it is not in dispute that the order in which the natural results are set out results from the relevance of the respective sites to the search term entered by the internet user and that the search engine operator does not claim any remuneration for displaying those results. It follows from those factors that, when internet users enter the name of a trade mark as a search term, the home and advertising page of the proprietor of that mark will appear in the list of the natural results, usually in one of the highest positions on that list. That display, which is, moreover, free of charge, means that the visibility to internet users of the goods or services of the proprietor of the trade mark is guaranteed, irrespective of whether or not that proprietor is successful in also securing the display, in one of the highest positions, of an ad under the heading ‘sponsored links.’ This may be true in the majority of cases, but not always. In my opinion the advertising function can certainly be affected when the link to the website of the trade mark owner only appears towards the bottom of the first page of hits or on further pages.
    

12. 
    In the Bergspechte-case the trade mark consisted of a combined word/device mark and the advertiser purchased the word part of that mark as a keyword. Therefore the mark and the sign were not identical so that the provision of art. 5(1)(b) Directive comes into play. In assessing whether there is a likelihood of confusion when internet users are shown, on the basis of a keyword similar to a mark, a third party’s ad the national courts should investigate whether such ad does not enable normally informed and reasonably attentive internet users, or enable them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.²¹
    
13. 
    In the Portakabin-case the question came up what the legal situation is when an advertiser purchases misspellings of the trade mark, like ‘portacabin’, ‘portokabin’ and ‘portocabin’. Such keywords do not reproduce all the elements constituting the trade mark. The Court said that they may be regarded as containing differences with the trade mark which are so insignificant that they may go unnoticed by the average consumer, within the meaning of the LTJ Diffusion-case.²² It is for the national court to assess, in the light of the evidence available to it, whether the signs in this case are to be regarded as such. In the event that the national court concludes that the trade mark and the keywords reproducing that mark with minor spelling mistakes are not identical, it is then for that court to ascertain whether those keywords are similar to that mark for the purposes of Article 5(1)(b). In the latter case, where the third party uses a sign which is similar to the trade mark in relation to goods or services identical with those for which the trade mark is registered, the trade mark proprietor can oppose the use of that sign only where there is a likelihood of confusion.
    

14. 
    In the Portakabin-case the advertiser who choose the trade mark Portakabin as a trade mark, offered for sale second hand units of the trade mark owner next to competing products. The ECJ repeated the same principles as outlined in the Google-case. But the Court was also asked to consider two exceptions to the infringement criteria of art. 5(1)(a) and (b), namely those provided in art. 6 and 7 Directive. The first one regards the use for descriptive purposes as well as use necessary for the intended purpose of the products. The Court concluded that it is unlikely that the use of a trade mark as a keyword would fall under these exceptions, but it also said that if a national court finds that one of these exceptions apply, it needs to assess whether such use is in accordance with honest practices. The Court ruled that in that context it must be assessed by, inter alia, taking account of the extent to which the use by the third party is understood by the relevant public, or at least by a significant section of that public, as establishing a link between the third party’s goods and those of the trade mark proprietor or a person authorised to use the trade mark, and of the extent to which the third party ought to have been aware of that. The circumstances under which a trade mark proprietor is, pursuant to Article 5(1), entitled to prevent an advertiser from using a sign identical with, or similar to, that trade mark as a keyword may easily correspond to a situation in which the advertiser cannot claim that it is acting in accordance with honest practices in industrial or commercial matters, and cannot therefore validly rely on the exception provided for in Article 6(1) Directive.²³ This seems to be a circular reasoning, since art. 6(1) is an exception to art. 5(1) and art. 6(1) does not apply (via the honest practices requirement) in a situation that falls under art. 5(1).
    
15. 
    The second exception to the rights of the trade mark owner regards the principle of exhaustion of rights that came up in this case because the advertiser also offered second hand products of the trade mark owner. The principle of art. 7 Directive is that the proprietor’s right to prohibit all third parties from using the mark is exhausted where goods have been placed on the market in the European Economic Area (EEA) under that trade mark by the proprietor or with his consent, unless there are legitimate reasons for him to oppose further commercialisation of the goods. On the basis of the case law on exhaustion of rights, the Court concluded that a trade mark proprietor is not entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with, or similar to, that trade mark, the resale of second-hand goods originally placed on the market in the EEA under that trade mark by the proprietor or with his consent, unless there are legitimate reasons, within the meaning of Article 7(2) Directive 89/104, which would justify that proprietor’s opposition to such advertising.
    
16. 
    When does the trade mark owner have a legitimate reason to block the further commercialisation of the products and thereby in this context the use of the trade mark as a keyword? As the ECJ already decided in the Parfums Christian Dior-case²⁴ legitimate reasons can exist when the advertiser’s use of a sign identical with, or similar to, a trade mark seriously damages the reputation of that mark. Furthermore a legitimate reason exists when the reseller, through its advertising based on a sign identical with, or similar to, the trade mark, gives the impression that there is a commercial connection between the reseller and the trade mark proprietor, and in particular that the reseller’s business is affiliated to the proprietor’s distribution network or that there is a special relationship between the two undertakings.²⁵ It follows that in the context of keyword advertising the advertiser cannot rely on the exhaustion rule of art. 7 Directive if there are circumstances in which use of that sign by the advertiser does not enable normally informed and reasonably attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of that mark or from an undertaking economically linked to it or, on the contrary, originate from a third party.²⁶
    
17. 
    The ECJ gave some guidance to national courts in order to facilitate a better assessment of the existence of legitimate reasons. First of all, the Court decided that the mere fact that an ad contains words like `used´ or ´second hand´ does not create the impression that the reseller and the trade mark proprietor are economically linked or causes the ad to be seriously detrimental to the reputation of that mark.²⁷ The second issue concerns so-called debranding. The advertiser in the Portakabin-case sold second hand products from the trade mark owner of which he had taken off the original trade mark and replaced it by his own mark. It appeared that internet users who clicked on the ‘used portakabins’ ad were shown mobile buildings bearing the wording ‘Primakabin,’ being the trade mark of the advertiser. The Court ruled that where the reseller, without the consent of a trade mark proprietor, removes that trade mark from the goods (‘de-branding’) and replaces it with a label bearing the reseller’s name, with the result that the trade mark of the manufacturer of the goods in question is entirely concealed, the trade mark proprietor is entitled to prevent the reseller from using that mark to advertise that resale. In such a case, damage is caused to the essential function of the trade mark, which is to indicate and guarantee the origin of the goods, and the consumer is prevented from distinguishing the goods originating from the proprietor and those originating from the reseller or other third parties.²⁸ The third aspect regards the fact that the ad ‘used portakabins’ which Primakabin caused to be displayed when internet users entered the word ‘portakabin’, ‘portacabin’, ‘portokabin’ or ‘portocabin’ in the search engine, led, when those internet users clicked on that advertising link, to web pages in which Primakabin sold, in addition to goods originally manufactured and placed on the market by Portakabin, goods under other trade marks. The Court accepted that practice as being legitimate and said that where a reseller specialises in the resale of goods under another person’s trade mark, the reseller cannot be prohibited from using that mark in order to advertise its resale activities which include – apart from the sale of second-hand goods under that mark – the sale of other second-hand goods, unless the resale of those other goods risks, in the light of their volume, their presentation or their poor quality, seriously damaging the image which the proprietor has succeeded in creating for its mark.²⁹ This could for example be the case where the advertiser does not have any serious stock of second hand products and therefore only uses the mark as an incentive to sell other products.
    

18. 
    The question under what circumstances a trade mark owner can oppose the use of his trade mark as a keyword under art. 5(2) Directive has not yet been decided by the ECJ. It forms part of the questions referred to this Court by the English High Court in the Interflora-case.³⁰ However in the Google-case (which only regarded the position of a search engine) there are some indications of the Court´s thinking. The ECJ referred to the L´Oreal/Bellure-case in which it was held, in the case of offers of imitations for sale, that, where a third party attempts, through the use of a sign which is identical with, or similar to, a reputable mark, to ride on the coat-tails of that mark in order to benefit from its power of attraction, its reputation and its prestige, and to exploit, without paying any financial compensation and without being required to make efforts of its own in that regard, the marketing effort expended by the proprietor of that mark in order to create and maintain the image of that mark, the advantage resulting from such use must be considered to be an advantage that has been unfairly taken of the distinctive character or the repute of that mark.³¹ The Court added that this case-law is relevant in cases where advertisers on the internet offer for sale, through the use of signs identical with reputable trade marks such as ‘Louis Vuitton’ or ‘Vuitton’, goods which are imitations of the goods of the proprietor of those marks. So, it can be assumed that the use by advertisers of reputed marks as keywords for the sale of counterfeit products is use that can be opposed under art. 5(2) Directive. Whether this can also be argued in cases where an advertiser sells products competing with the products of the owner of a reputed mark remains to be seen.
    

19. 
    Although this is outside the scope of trade mark law, it is worthwhile to briefly discuss what the ECJ decided in respect of the liability of Google under the E-Commerce Directive and whether Google can invoke the safe harbour provisions. Article 14 of that Directive (entitled ‘Hosting’) provides
    

(a)      the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

20. 
    According to the recital 42 of this Directive the exemptions from liability established in that Directive cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of, nor control over the information which is transmitted or stored’. The first question therefore is whether Google can be considered as an information society service provider. The answer of the Court is: yes, since it covers services which are provided at a distance, by means of electronic equipment for the processing and storage of data, at the individual request of a recipient of services, and normally in return for remuneration.³² Regarding the exemption for liability the ECJ decided that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability. Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server. By contrast, says the Court, in the context of the examination whether Google is neutral, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant.³³ This means that in case Google suggests alternative trade marks as keywords, it can be argued that Google can no longer profit from the safe harbour provisions.
    

21. 
    As a result of the Google-cases Google changed its policy in Europe as per September 14, 2010. In the EU it is now possible to purchase trade marks as keywords.³⁴ But Google also adopted a notice and take down procedure. On its support-site it says:³⁵ “In EU and EFTA regions, we do not prevent the selection of trade marks as keywords. However, in response to a complaint, we will do a limited investigation as to whether a keyword (in combination with particular ad text) is confusing as to the origin of the advertised goods and services. An example could be an ad that falsely implies affiliation with the trade mark owner. If we find that it is confusing, we will remove the specific ad that is the subject of the complaint.” Furthermore Google says: “we will permit the following types of ads to display against a trade marked keyword, provided that the ad is not confusing as described above. (The following are examples and not an exhaustive list.): ads using a trade marked term when that term is being used in a descriptive or generic way, such as not in reference to the term as a trade mark, ads for competing products or services, ads for resale of the trade marked goods or services, ads for the sale of components, replacement parts, or compatible products corresponding to a trade mark, ads for informational sites about a product or service corresponding to the trade mark.” In the UK, resellers will be able to use a brand owner's trade mark visibly in the text of the advertisement concerned. It remains to be seen how the new policy of Google is going to be applied.
    

22. 
    The conclusion is that we now have some guidance as to the permissibility under trade mark law of the use of trade marks as keywords. However, it remains unclear under what circumstances the sponsored link triggered by such a keyword does or does not give the impression of an economic link with the trademark owner, or remains so vague that normally informed and reasonably attentive internet users are unable to determine, on the basis of the advertising link and the commercial message attached thereto, whether the advertiser is a third party vis-à-vis the proprietor of the trade mark or, on the contrary, economically linked to that proprietor. This will not be an easy task for national courts. Also, case law on the application of art. 5(2) Directive still needs to be developed.