ddrg/super_eurlex huggingface dataset:
Case C‑479/12

H. Gautzsch Großhandel GmbH & Co. KG

v

Münchener Boulevard Möbel Joseph Duna GmbH

(Request for a preliminary ruling from the Bundesgerichtshof)

‛Reference for a preliminary ruling — Intellectual property — Community designs — Regulation (EC) No 6/2002 — Articles 7(1), 11(2), 19(2), 88 and 89(1)(a) and (d) — Unregistered Community design — Protection — Making available to the public — Novelty — Action for infringement — Burden of proof — Extinction of rights over time — Time-barring — Applicable law’

Summary — Judgment of the Court (Third Chamber), 13 February 2014

On a proper construction of Article 11(2) of Regulation No 6/2002 on Community designs, it is possible that an unregistered design may reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, if images of the design were distributed to traders operating in that sector, which it is for the Community design court to assess, having regard to the circumstances of the case before it. (see para. 30, operative part 1)

On a proper construction of the first sentence of Article 7(1) of Regulation No 6/2002 on Community designs, it is possible that an unregistered design may not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, even though it was disclosed to third parties without any explicit or implicit conditions of confidentiality, if it has been made available to only one undertaking in that sector or has been presented only in the showrooms of an undertaking outside the European Union, which it is for the Community design court to assess, having regard to the circumstances of the case before it. (see para. 36, operative part 2)

On a proper construction of the first subparagraph of Article 19(2) of Regulation No 6/2002 on Community designs, the holder of the protected design must bear the burden of proving that the contested use results from copying that design. However, if a Community design court finds that the fact of requiring that holder to prove that the contested use results from copying that design is likely to make it impossible or excessively difficult for such evidence to be produced, that court is required, in order to ensure observance of the principle of effectiveness, to use all procedures available to it under national law to counter that difficulty, including, where appropriate, rules of national law which provide for the burden of proof to be adjusted or lightened. (see para. 44, operative part 3)

The defences of the extinction of rights over time and of an action being time-barred that may be raised against an action brought on the basis of Articles 19(2) and 89(1)(a) of Regulation No 6/2002 on Community designs are governed by national law, which must be applied in a manner that observes the principles of equivalence and effectiveness. (see para. 50, operative part 4)
It is settled case-law that, for the purposes of applying Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark, a likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier mark was registered, and that those conditions are cumulative.

The Court’s case-law is well established in that regard. The Court has held on a number of occasions that, where there is no similarity between the earlier mark and the mark applied for, the enhanced distinctiveness of the earlier mark and the fact that the goods or services concerned are identical or similar are not sufficient for it to be found that there is a likelihood of confusion between the marks at issue.

Moreover, the Court dismissed as clearly unfounded the ground of appeal alleging that the General Court had erred in law in holding that an opposition based on Article 8(1)(b) of Regulation No 207/2009 could, in some cases, be rejected simply on the basis of an examination of the similarity of the marks and specifically, that is to say, without considering the possible high distinctiveness of the earlier mark. The Court of Justice held, in essence, that the General Court had not erred in law in holding that, when the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) had reached the conclusion that the marks in question could in no way be regarded as similar by the relevant public, the Board was entitled to infer that there was no likelihood of confusion, without having first, in the course of an overall assessment of the likelihood of confusion, to examine, in particular, the possible highly distinctive character of the earlier mark.

Similarity of the marks in question is thus a necessary condition for it to be found that there is a likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 207/2009. Accordingly, the lack of similarity between the marks at issue renders Article 8 of Regulation No 207/2009 inapplicable.

The enhanced distinctiveness of a mark, acquired through use, must therefore be taken into account when determining whether the similarity between the signs or between the goods or services covered is sufficient to give rise to a likelihood of confusion.

(see paras 41-45)
Article 70(1) of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that, since it applies only to goods covered by ‘a [single] declaration’ where those goods are examined by the customs authorities before those authorities grant the release of those goods, that provision does not permit those authorities to apply the results of the partial examination of goods covered by a customs declaration to goods covered by earlier customs declarations which have already been released by those authorities.

Article 78 of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as permitting the customs authorities to apply the results of a partial examination of goods covered by a customs declaration, carried out by way of sampling of them, to goods covered by earlier customs declarations submitted by the same customs declarant, which were not and can no longer be examined since the release has been granted, where those goods are identical.

In that regard, it is irrelevant that the customs declarant is no longer in a position to request a further examination of the goods in question and, if necessary, the taking of additional samples. Article 78 of the Customs Code applies, as a matter of principle, after the grant of the release of the goods to a time when their presentation may be impossible.

However, it is essential that customs declarants have the right to challenge such an application, in particular where they consider, despite their own information provided in their customs declarations, that the result of the partial examination of the goods declared is not transferable to goods covered by earlier customs declarations, by adducing evidence in support of that assertion to show that the goods in question are not identical.

Moreover, although Article 78 of the Customs Code does not institute any specific time-limit for the amendment of customs declarations, the customs authorities, in accordance with Article 221(3) of that Code, may communicate a new customs debt within a period of three years from the date on which that debt arose.

(see paras 34, 35, 38, 40, 43, operative part)
Keywords

Subject of the case

Operative part



Keywords

Appeals — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Repeal of the contested measure during the proceedings — No effect — Basis of a potential action for damages (see paras 31, 32)

2. Appeals — Grounds — Specific criticism of a point of the General Court’s reasoning necessary (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court, Art. 169(2)) (see paras 41, 42)

3. Agriculture — Approximation of laws — Placing of plant protection products on the market — Directive 91/414 — Procedure for adding the active substances of those products to Annex I to that directive — Withdrawal by notifier of support for inclusion of an active substance in that annex — Conditions (Council Directive 91/414, Art. 8(2); Commission Regulations No 1490/2002, Arts 11b and 11c, and Annex VI, and No 1095/2007, Art. 3(2)) (see para. 58)

Subject of the case

Re:

Appeal against the judgment of the General Court (Fifth Chamber) of 19 January 2012 in Case T-71/10 Xeda International and Pace International LLC v Commission , by which that court dismissed an action seeking the annulment of Commission Decision 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (notified under document number C(2009)9262) (OJ 2009 L 314, p. 79).

Operative part

Operative part:

The Court:

1. Dismisses the appeal;

2. Orders Xeda International SA and Pace International LLC to pay the costs.
In the context of a procedure under Article 81 EC, in accordance with the requirement that the statement of objections be precise, it is necessary for that statement to indicate in which capacity an undertaking is called upon to answer the allegations. That requirement is not satisfied by a statement of objections in which the Commission fails to indicate that the statement of objections has been addressed to a parent company on the ground that it exercised decisive influence over the commercial conduct of one of its subsidiaries. In particular, it cannot be inferred that the Commission clearly indicated to the parent company that it intended to hold it liable, in its capacity as parent company, for the conduct of its subsidiary, since the statement of objections merely states that that parent company participated in the cartel through the director of its subsidiary, while referring to the subsidiary only in its capacity as the predecessor of another subsidiary, and especially since no statement of objections has been addressed to the earlier subsidiary. There is an infringement of the rights of the defence of the parent company in such circumstances.

(see paras 24-30)
Articles 4(1), 9 and 11 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that the competent authorities of the Member States are required to propose to the Commission the declassification of a site on the list of sites of Community importance, where those authorities have received a request from the owner of land included in that site, alleging an environmental degradation of the site, provided that that request is based on the fact that, despite compliance with the provisions of Article 6(2) to (4) of that directive, that site can definitively no longer contribute to the conservation of natural habitats and of the wild fauna and flora or the setting up of the Natura 2000 network.

Thus, when a site on the list of Sites of Community Interest is definitively no longer capable of contributing to the achievement of the objectives of Directive 92/43 and, accordingly, it is no longer warranted for the site to remain subject to the provisions of that directive, the Member State concerned is required to propose to the Commission that the site be declassified. That obligation is all the greater when that site includes land belonging to an owner whose exercise of his right to property is restricted as a result of that listing, when continuing to restrict the use of that site might be an infringement of the right to property.

However, not all degradation of a site on the list of Sites of Community Importance justifies its declassification. The competent national authorities are required to propose the declassification of a site only where, despite compliance with the obligations laid down in Directive 92/43, that site has become irretrievably unsuitable to meet the objectives of that directive.

(see paras 28, 29, 31, 35, 36, operative part 1)
In relation to the European Union’s distribution of powers, the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure. If examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component and if one is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component.

In that regard, the main aim of Directive 2011/82 facilitating the cross-border exchange of information on road safety related traffic offences is to improve road safety, which is a prime objective of the European Union’s transport policy. Consequently, since the directive is a measure to improve transport safety within the meaning of Article 91(1)(c) TFEU, it should have been adopted on the basis of that provision.

While it is certainly true that Directive 2011/82 puts in place a system for the cross-border exchange of information on road safety related traffic offences, the fact remains that the precise aim of establishing that system is to enable the European Union to pursue the goal of improving road safety. Accordingly, that directive is not directly linked to the objectives of police cooperation and could not validly be adopted on the basis of Article 87(2) TFEU.

(see paras 29, 30, 36, 37, 44, 49, 50)
Articles 203 and 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, read in conjunction with Article 859(2)(c) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 444/2002 must be interpreted as meaning that merely exceeding the time-limit for presentation, set under Article 356(1) of Regulation No 2454/93, as amended, does not lead to a customs debt being incurred for removal from customs supervision of the goods in question within the meaning of Article 203 of Regulation No 2913/92, as amended, but to a customs debt being incurred on the basis of Article 204 of that regulation.

Articles 203 and 204 of Regulation No 2913/92 have different spheres of application. Whilst the first provision covers conduct leading to the goods being removed from customs supervision, the second covers failure to fulfil obligations and non-compliance with the conditions of the various customs schemes which have no effect on customs supervision. Accordingly it is clear from the wording of Article 204 of Regulation No 2913/92 that it applies only to situations which do not fall within the scope of Article 203 of that regulation.

In that regard, under Article 204(1)(a) of Regulation No 2913/92, a customs debt on importation is incurred through non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from the use of the customs procedure under which they are placed, unless it is established that the failure has no significant effect on the correct operation of the procedure in question. Any circumstance not covered by this exception falls within the sphere of application of Article 204 of Regulation No 2913/92.

However, Article 859(2)(c) of Regulation No 2454/93 expressly provides that, where the time-limit set under Article 356 thereof has not been complied with and the belated presentation of the goods at the office of destination cannot be justified under Article 356(3) thereof, exceeding the time‑limit for presenting the goods is considered as having no significant effect on the correct operation of the temporary storage or customs procedure in question, where the goods were nevertheless presented to the office of destination within a reasonable time.

(see paras 31, 32, 39, 41, 45, operative part 1)
The choice of legal basis for an EU measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure.

In that regard, the purpose of the declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana, approved by Council Decision 2012/19, is not the fixing and allocation of fishing opportunities, within the meaning of Article 43(3) TFEU, but to offer that Republic the opportunity to participate in the utilisation of living resources in the exclusive economic zone of French Guiana, under the conditions laid down by the European Union.

Having regard to the specific responsibility of the European Union — acting on behalf of the coastal State — for the utilisation of living resources in the latter’s exclusive economic zone, the competent EU institutions assess whether the interested State is capable of ensuring that the ships flying its flag respect the conditions to which such utilisation is subject, such as, inter alia, compliance with the provisions of the European Union’s common fisheries policy applicable in the zone concerned. Finally, the EU institutions are to take into account factors such as the significance of the living resources of the area to its economy and its other national interests, the requirements of developing States in the region concerned and the need to minimise economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.

Thus, the purpose of the declaration at issue is to establish a general framework, with a view to authorising fishing vessels flying the flag of Venezuela to fish in that zone, which was subsequently clarified by several provisions of various regulations. It follows that the offer made to the Bolivarian Republic of Venezuela is not a technical or implementing measure but, on the contrary, a measure which entails the adoption of an autonomous decision which must be made having regard to the policy interests of the European Union pursued through its fisheries policy. The declaration at issue therefore falls within an area of competence in which the decision-making power lies with the EU legislature and Decision 2012/19, which approved that declaration on behalf of the European Union, falls within the scope of Article 43(2) TFEU, not Article 43(3) TFEU.

Moreover, given that that declaration is a constituent element of an international agreement, it falls within the scope of Article 218 TFEU. Decision 2012/19 must therefore be adopted on the basis of Article 43(2) TFEU in conjunction with Article 218(6)(a)(v) TFEU, not Article 43(3) TFEU in conjunction with Article 218(6)(b) TFEU.

(see paras 51, 58, 75, 76, 78-83, 85, operative part 1)
Accordingly, the freedom of the Member States with regard to the choice of method of recovery of such aid is limited in so far as those rules and procedures cannot have the effect of making the recovery required by EU law practically impossible. The application of national procedures is subject to the condition that those procedures allow the immediate and effective execution of the Commission’s decision, a condition which reflects the requirements of the principle of effectiveness. Consequently, the question whether the Member State concerned, by choosing those measures, has fulfilled its obligation to recover aid found to be incompatible with the internal market in accordance with the requirement of effectiveness must be assessed on a case-by-case basis, having regard to the specific circumstances of the case.

EU law does not require the recovery of unlawful aid from the beneficiary by the national authority to be effected on the basis of the Commission’s recovery decision alone. The Member State concerned is free to choose the means of fulfilling its obligation to recover aid found to be incompatible with the internal market, provided that the measures chosen do not adversely affect the scope and effectiveness of EU law.

As for the justification for a significant delay in recovering unlawful aid, the only defence available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU is to plead that it was absolutely impossible for it to implement the decision in question. The basis of such absolute impossibility may also be a legal one, when it results from decisions adopted by the national courts, provided that those decisions comply with EU law.

Accordingly, in the event that national civil law rules do not allow for the effective recovery of the aid in question, it may be necessary, in view of the circumstances of the case, for national rules to be left unapplied and to have recourse to other measures, since such measures cannot be excluded on grounds relating to national law. In that regard, Article 4(3) TEU also imposes an obligation of cooperation in good faith between the national courts, on the one hand, and the Commission and the European Union Courts, on the other, in the context of which national courts must take all the necessary measures, whether general or specific, to ensure fulfilment of the obligations under EU law and refrain from those which may jeopardise the attainment of the objectives of the Treaty.

Moreover, review by the national court of an enforceable order for the recovery of unlawful aid and possible annulment of that order must be viewed simply as an expression of the principle of effective judicial protection, which is a general principle of EU law.

(see paras 45, 48, 49, 55, 56)
8

In its judgment the Krajský súd Bratislava stated, inter alia, that the Protimonopolný úrad had misinterpreted the concepts of ‘competitor’ and ‘relevant market’. According to that court, the Protimonopolný úrad had not determined whether Akcenta could be regarded as one of Slovenská sporitel’ňa’s competitors on the relevant market, given that it was operating in Slovakia without the requisite authorisation from the Národná banka Slovenska (Slovak National Bank); nor had that authority considered the question as to whether Akcenta’s illegal activity could be accorded legal protection. The Krajský súd Bratislava pointed out in that regard that the Národná banka Slovenska had imposed a fine of EUR 35 000 on Akcenta on the ground that, from January 2008 to June 2009, it had been carrying out foreign exchange transactions in Slovakia without a licence. At the same time, however, the Krajský súd Bratislava stated that the decision of the Národná banka Slovenska imposing the fine had been annulled by the Banková rada Národnej banky Slovenska (Banking Council of the Slovak National Bank) and that the investigation into Akcenta had been closed on the basis that a penalty could no longer be imposed on it because the limitation period applicable in relation to financial penalties had expired. In addition, the Krajský súd Bratislava pointed out that it was clear from the documents before it that Akcenta was not a competitor of the banks concerned but just one of their customers, since it was not providing services at the same level as the banks and was operating on the basis of a different set of rules. The Krajský súd Bratislava also noted that the Protimonopolný úrad had not taken sufficient account of the circumstances in which the agreement at issue in the main proceedings had been entered into. It considered that it had not been proved, inter alia, that Akcenta had attempted unsuccessfully to reopen bank accounts with Slovenská sporitel’ňa.