Case C-196/01: Action brought on 8 May 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2001-07-14
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, catalogue, waste, waste management

14.7.2001

EN

Official Journal of the European Communities

C 200/53

— Infringement of Article 1(4) of Directive 91/689/EEC:
Under the first indent of Article 1(4), a precise and
uniform definition of hazardous waste, required for
application of the directive, is achieved by reference to
Annexes I, II and III to the directive and the list of
hazardous waste to be drawn up in accordance with the
procedure laid down in Article 18. It follows that, in their
legislation to transpose the directive, the Member States
must take those annexes and that list as a basis for
determining the field of application of their national
provisions. The list, which is contained in Council
Decision 94/904/EC, supplements the provisions of the
directive on hazardous waste.

The possibility for the Member States to adopt stricter
protective measures in fields harmonised by Community
environmental provisions is not to be equated with an
option not to transpose such harmonisation measures.

4. Article 12 of the Trade Marks Directive provides that a
trade mark shall be ‘liable’ to revocation in specified
circumstances. When those circumstances exist, must the
court revoke the trade mark, or does the court retain any
discretion as to whether to revoke?

(1) OJ L 40, 11.2.1989, p. 1.

Action brought on 8 May 2001 by the Commission of the
European Communities against the Grand Duchy of
Luxembourg

(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.

(Case C-196/01)

(2001/C 200/95)

Reference for a preliminary ruling by the House of Lords,
by order of that court of 4 April 2001, in the case of
Scandecor Development AB and others against Scandecor
Marketing AB and another

(Case C-195/01)

(2001/C 200/94)

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor
Development AB and others against Scandecor Marketing AB
and another, on the following questions:

1.

Is a trade mark to be regarded as liable to mislead the
public within the meaning of article 12(2)(b) of Council
Directive No 89/1104/EEC (1) of 21 December 1988 to
approximate the laws of the Member States relating to
trade marks (the ‘Trade Marks Directive’) if the origin of
the goods denoted by the mark is a bare exclusive
licensee?

2. What are the criteria to be applied in determining whether
a trading relationship comprises a single undertaking for
the purposes of the Trade Marks Directive?

3.

Is a company a person for the purpose of article 6(1)(a)
of the Trade Marks Directive?

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice on 8 May 2001 by the
Commission of the European Communities, represented by
H. Støvlbaek and J. Adda, acting as Agents, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare that the Grand Duchy of Luxembourg has failed
to comply with its obligations under Article 1(a) of
Council Directive 75/442/EEC of 15 July 1975 on
waste (1), as amended by Council Directive 91/156 EC of
18 March 1991 (2) and Commission Decision 94/3/EC of
20 December 1993 establishing a list of wastes pursuant
to Article 1(a) of Council Directive 75/442/EEC on
waste (3);

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

— Although the Grand Duchy of Luxembourg was obliged,
under the fourth paragraph of Article 249 EC,
to
incorporate the European Waste Catalogue (EWC), for-
ming the subject-matter of Decision 94/3/EC, into its
national law, it has simply reproduced it in a ministerial
circular which is binding on the administrative authorities
but not on third parties.

— At the same time, the Grand Duchy of Luxembourg
introduced a nomenclature applying purely to Luxem-
bourg, which is totally different from the EWC. Various
operations in respect of which use of
the EWC is
precluded are linked to the implementation of national
measures designed to transpose the Community legis-
lation on waste. In addition, the coexistence of two lists
(the Luxembourg nomenclature and the EWC) between

C 200/54

EN

Official Journal of the European Communities

14.7.2001

which there is no unequivocal correlation has the effect
of increasing the risk of confusion and classification
errors. A Member State may not plead the mere concept
of ‘national management’ in order to be authorised to
derogate from the applicable Community legislation,
inasmuch as there is no way of telling how the manage-
ment of waste in Luxembourg relates to ‘specific needs’
which are not covered by the relevant Community rules.

(1) OJ L 194 of 25.7.1975, p. 39.
(2) OJ L 78 of 26.3.1991.
(3) OJ L 5 of 7.1.1994, p. 15.

Justice (England & Wales), Queen’s Bench Division (Commer-
cial Court) of 13 November 2000, which was received at the
Court Registry on 30 May 2001, for a preliminary ruling in
the case of Joseph Lennox (trading as R. Lennox & Son) against
Industria Lavorazione Carni Ovine, on the following questions:

1.

(a) Where a consignment of sheep is exported from one
Member State to another Member State and the
sheep are for slaughter on arrival, is the requirement
under Article 9 of Directive 91/68/EEC (1) complied
with where the accompanying health certificate is
not a Model I certificate, as in Annex E thereof, but
is a Model II certificate?

Reference for a preliminary ruling by the Corte di Appello
di Firenze by order of that court of 23 January 2001 in
the case of Altair Chimica SpA against ENEL Distribuzione
SpA

(Case C-207/01)

(2001/C 200/96)

the Court Registry on 18 May 2001,

Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello
(Court of Appeal), Florence, by order of 23 January 2001,
received at
for a
preliminary ruling in the case of Altair Chimica SpA v ENEL
Distribuzione SpA on the exact interpretation of Articles 81,
82 and 85 of the Treaty establishing the European Community,
of Directive 92/12/EEC (1) and Council Recommendation
81/924/EEC of 27 October 1981, in order to ascertain whether
the provisions of national law laid down in Legislative Decrees
No 347/44 and No 896/47, Presidential Decree No 373/94,
Legislative Decree No 98/48 and Law No 9/91 are incompat-
ible with those provisions of Community law.

(1) Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject to excise duty and on the
holding, movement and monitoring of such products (OJ 1992
L 76, of 23 March 1992, p. 1).

Reference for a preliminary ruling by the High Court
of Justice (England & Wales), Queen’s Bench Division
(Commercial Court), by order of that court of 13 Novem-
ber 2000,
in the case of Joseph Lennox (trading as
R. Lennox & Son) against Industria Lavorazione Carni
Ovine

(Case C-220/01)

(2001/C 200/97)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of

(b)

If the answer to Question 1(a) is No, so that the
consignment must be accompanied only by a Mo-
del I certificate, does the responsibility for identifying
the correct certificate prior to export rest on the
exporter or on the recipient of the sheep, or is it for
the applicable national
to
the contract
determine which party bears this responsibility?

law of

(c) Where a consignment of sheep is exported from one
Member State to another Member State and the
sheep are for slaughter on arrival and where the
accompanying health certificate is a Model II certifi-
cate, is the national law of the State of destination
entitled to make the importation unlawful on the
ground that the certificate is not a Model I certificate?

2.

(a)

In July 1997, was it compatible with Community
law, in particular Articles 28-30 EC (ex Articles 30-
36) and/or Article 152 EC (ex 129 of the EC Treaty)
and/or Articles 6 and 174 EC (from ex 130r of the
EC Treaty) and Council Directives 89/662/EEC (2),
90/425/EEC (3) and 91/68/EEC, for a Member State
to require that the health certificates required pursu-
ant to Article 9 of Directive 91/68/EEC include the
following declaration:
‘The animals referred to in
this certificate were born and raised on farms
in which no case of Transmissible Spongiform
Encephalopathy (TSE) has been registered in the last
6 years.’?

(b)

If the answer to Question 2(a) is No, where the
exporter has otherwise fulfilled its obligations under
the applicable law of the contract to deliver the
sheep to the recipient’s place of business,
is a
national court required, in civil proceedings between
the exporter and the recipient concerning their
contractual rights and obligations regarding the
importation of the sheep, to ignore any obligations
law of the Member State of
under the national