Case C-188/01: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenats Salzburg by order of that court of 25 April 2001 in the case of Francisco Javier Gonzales Moreno
Date: 2001-07-14
Institutions: Court of Justice
Subjects: advertising malpractice, approximation of laws, consumer protection, cosmetic product, interpretation of the law, product safety

14.7.2001

EN

Official Journal of the European Communities

C 200/49

The appellant claims that the Court should:

— set aside the judgment delivered on 13 February 2001 by
the Court of First Instance of the European Communities
(Fifth Chamber) in Case T-166/00 Hirschfeldt v European
Environment Agency;

— proceed to adjudicate afresh in the matter, and thus:

Where a lessee fills up a leased car in the name and at the
expense of the lessor at filling stations, is there a supply of fuel
by the lessor to the lessee and must tax be paid on this supply
at the place of supply within the meaning of Article 8(1)(b) of
Directive 77/388/EEC or is the ‘onward supply’ included in the
lessor’s supply of a service that is taxable under Article 9 of
Directive 77/388/EEC?

— annul the decision cancelling internal competition
EEA/T/99/1, communicated to the appellant by
letter of 27 September 1999;

— annul the decision of 13 December 1999 transfer-
ring the appellant from the Commission to the
European Environment Agency,
inasmuch as it
classifies him in grade A5, step 3, with effect from
1 November 1999;

— order the respondent to pay the costs of the two sets

of proceedings.

Pleas in law and main arguments

— The Court of First Instance committed an error of law in
finding that the Commission’s threats ‘definitively to
cease using transfers in future’ for the benefit of the
European Environment Agency in the event of a refusal
to cancel internal competition EEA/T/99/1 did not have
the effect of vitiating the way in which the appointing
authority had exercised its discretion by proceeding to
cancel the competition in question.

— The Court of First Instance committed an error of law in
imposing conditions for appointment as an established
official which are not provided for in the third paragraph
of Article 8 of the Staff Regulations and in failing to
verify whether the European Environment Agency had in
fact reconstituted the appellant’s career as regards both
the his grade on establishment and his seniority in step.

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Verwaltungsger-
icht Stuttgart by order of 4 April 2001 in the case of
Alexander Dory v Federal Republic of Germany —
Kreiswehrersatzamt Schwäbisch Gmünd

(Case C-186/01)

(2001/C 200/88)

Reference has been made to the Court of Justice of the
European Communities by order of 4 April 2001 by the
Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart),
which was received at the Court Registry on 30 April 2001,
for a preliminary ruling in the case of Alexander Dory v
Federal Republic of Germany Kreiswehrersatzamt (District
Recruiting Office) Schwäbisch Gmünd on the following ques-
tion, in particular with regard to the interpretation of Article 2
of Directive 76/207/EEC of 9 February 1976 on the implemen-
tation of the principle of equal treatment for men and women
as regards access to employment, vocational training and
promotion, and working conditions (1):

Does German compulsory military service for men only
conflict with European law?

(1) OJ L 39 of 14.2.1976, p. 40.

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of 22 February 2001 in the case of Auto Lease
Holland B.V. v Bundesamt für Finanzen

(Case C-185/01)

(2001/C 200/87)

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenats Salzburg by order of that court of 25
April 2001 in the case of Francisco Javier Gonzales
Moreno

Reference has been made to the Court of Justice of the
European Communities by order of 22 February 2001 by the
Bundesfinanzhof (Federal Finance Court), which was received
at the Court Registry on 30 April 2001, for a preliminary
ruling in the case of Auto Lease Holland B.V. v Bundesamt für
Finanzen on the following question (1):

(Case C-188/01)

(2001/C 200/89)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-

C 200/50

EN

Official Journal of the European Communities

14.7.2001

tungssenat Salzburg (Independent Administrative Chamber for
Salzburg) of 25 April 2001 which was received at the Court
Registry on 30 April 2001, for a preliminary ruling in the
case of Francisco Javier Gonzales Moreno on the following
questions:

1.

Do Articles 28 and 30 EC, Council Directive 76/768/EEC
of 27 July 1976 (1) on the approximation of the laws of
the Member States relating to cosmetic products, as
amended by Council Directive 88/667/EEC of 21 Decem-
ber 1988 (2) and Council Directive 93/35/EEC of 14 June
1993 (3), in particular Article 6(3) thereof, together with
Council Directive 84/450/EEC of 10 September 1984 (4)
relating to the approximation of the laws, regulations
and administrative provisions of
the Member States
concerning misleading advertising, in particular Articles 4
and 7 thereof, preclude national legislation which pro-
hibits,
in connection with the marketing of cosmetic
products, references to medical opinions, by the use, in
particular, of the description ‘ophthalmologically tested’?

2. Do Articles 28 and 30 EC, Council Directive 76/768/EEC
of 27 July 1976 on the approximation of the laws of the
Member States relating to cosmetic products, as amended
by Council Directive 88/667/EEC of 21 December 1988
and Council Directive 93/35/EEC of 14 June 1993, in
particular Article 6(3) thereof, and Council Directive
84/450/EEC of 10 September 1984 on the approxi-
mation of the laws, regulations and administrative pro-
visions of
the Member States concerning misleading
advertising, in particular Articles 4 and 7 thereof, preclude
national legislation which permits the use of references
falling within the terms of Question 1 only after prior
authorisation by the competent Federal Minister?

(1) OJ 1976 L 262, p. 169.
(2) OJ 1988 L 382, p. 46.
(3) OJ 1993 L 151 p. 32.
(4) OJ 1984 L 250, p. 17.

European Communities in case T-193/99 between Wm.
Wrigley Jr. Company and Office for Harmonization in the
Internal Market (Trade Marks and Designs), was brought before
the Court of Justice of the European Communities on 20 April
2001 by Office for Harmonization in the Internal Market
(Trade Marks and Designs), represented by Virginia Melgar and
Susanna Laitinen, acting as Agents.

The Appellant claims that the Court should:

— annul the judgment;

— order the respondent to pay the costs of the proceedings

before the Court of First Instance and before this Court.

Pleas in law and main arguments

The Office for Harmonization in the Internal Market (Trade
Marks and Designs) submits that:

— The Court of First Instance erred in law in interpreting
Article 7(1)(c) CTMR to require that a term must be
‘exclusively descriptive’
is to be excluded from
it
registration as a Community trade mark under that
provision and in holding that the term ‘Doublemint’ is
thus not excluded from registration.

if

— The reasoning used to support the reversal of the refusal
of the term ‘Doublemint’ is contradictory, founded on an
artificial analysis, and fails to regard commercial reality
and the context in which the mark is to be used, which
amounts to a reversible error of law because it constitutes
a manifest error of appreciation.

(1) OJ C 333, 20.11.1999, p. 27.

Appeal brought on 20 April 2001 by Office for Harmo-
nization in the Internal Market (Trade Marks and Designs)
against the judgment delivered on 31 January 2001 by the
Second Chamber of the Court of First Instance of the
European Communities in case T-193/99 (1) between Wm.
Wrigley Jr. Company and Office for Harmonization in the
Internal Market (Trade Marks and Designs)

(Case C-191/01 P)

(2001/C 200/90)

An appeal against the judgment delivered on 31 January 2001
by the Second Chamber of the Court of First Instance of the

Action brought on 4 May 2001 by the Commission of the
European Communities against the Kingdom of Denmark

(Case C-192/01)

(2001/C 200/91)

An action against the Kingdom of Denmark was brought
before the Court of Justice on 4 May 2001 by the Commission
of the European Communities, represented by Hans Christian
Støvlbæk, with an address for service in Luxembourg.