Case C-209/01: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 21 February 2001 in the case of Theodor Schilling and Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd
Date: 2001-07-28
Institutions: Court of Justice
Subjects: EU national, European official, equal treatment, interpretation of the law, tax on income, tax relief

C 212/14

EN

Official Journal of the European Communities

28.7.2001

— Order the Kingdom of the Netherlands to pay the costs.

(b)

Pleas in law and main arguments

The Commission submits that Netherlands has not correctly
implemented the following provisions of the directive into
Netherlands law:

— Article 8(2) (use of anaesthesia in the case of serious
injury which may cause severe pain): A draft amendment
to the ‘Dierproevenbesluit’ (animal experiments order) for
last sentence,
the implementation of Article 8(2)(b),
of
the directive, was, according to the Netherlands
Government, recently sent for the opinion of the Raad
van State.

— Article 11 (release of animals): The Commission submits
that Article 10(a), second paragraph of the Wet op de
Dierproeven (law on animal experiments) has a general
scope and does not concern specifically the release of
animals.

— Article 18(1) (identification marking of dogs, cats and
primates): There is no provision in Netherlands law to
the effect that before they are weaned they must be provided
with an individual identification mark in the least painful
manner possible.

— Article 22(1) (mutual recognition of results of animal
experiments): The Commission submits that this pro-
vision must be implemented in national law by means of
a statutory provision with binding force.

(1) OJ 1987, L 117, p. 31.

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court of 4 May 2001, in the case of Arsenal
Football Club plc against Matthew Reed

(Case C-206/01)

(2001/C 212/23)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, of 4 May 2001,
which was received at the Court Registry on 18 May 2001, for
a preliminary ruling in the case of Arsenal Football Club plc
against Matthew Reed, on the following questions:

1. Where a trade mark is validly registered and

(a)

a third party uses in the course of trade a sign
identical with that trade mark in relation to goods
which are identical with those for whom the trade-
mark is registered; and

the third party has no defence to infringement by
virtue of Article 6(1) of the Council Directive of the
21st December 1988 to approximate the laws of
the Member States
relating to trade marks
(89/104/EEC) (1);

does the third party have a defence to infringement on
the ground that the use complained of does not indicate
trade origin (i.e. a connection in the course of trade
between the goods and the trade mark proprietor)?

2.

is the fact that the use in question would be
If so,
perceived as a badge of support, loyalty or affiliation to
the trade mark proprietor a sufficient connection?

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

Reference for a preliminary ruling from the Bundesfin-
anzhof by order of that court of 21 February 2001 in the
case of Theodor Schilling and Angelika Fleck-Schilling v
Finanzamt Nürnberg-Süd

(Case C-209/01)

(2001/C 212/24)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesfinanzhof
(Federal Finance Court) of 21 February 2001, which was
for a
received at
preliminary ruling in the case of Theodor Schilling and
Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd on the
following questions:

the Court Registry on 21 May 2001,

1.

Is it contrary to the first paragraph of Article 14 of the
Protocol on the privileges and immunities of the Euro-
pean Communities of 8 April 1965 (BGBl II 1965, 1482,
1488) if German nationals who work in Luxembourg as
officials of the European Community and live there may
not, in the context of assessment to German income tax,
deduct expenditure in respect of a household help
employed in Luxembourg under Paragraph 10(1)(8) of
the Einkommensteuergesetz (Law on income tax) because
the contributions to the statutory pension insurance
scheme for the household help were not paid to the
German pension insurance scheme?

2.

If Question 1 is answered in the negative: Is Article 48(4)
of the EC Treaty to be interpreted as meaning that an EC
official may not rely on Article 48 of the EC Treaty?

28.7.2001

EN

Official Journal of the European Communities

C 212/15

3.

If Question 2 is answered in the negative: Is it contrary to
Article 48 of the EC Treaty if an EC official living in
Luxembourg who is deemed to be resident in Germany
and pays contributions in Luxembourg to the statutory
pension insurance scheme for a household help is not
entitled to deduct
special expenditure under Para-
graph 10(1)(8) of the Einkommensteuergesetz?

4.

If Question 3 is answered in the affirmative: May the
principles developed in the judgment in Case C-112/91
Werner [1993] ECR I-429 be applied to the present case?

their transposition. That time-limit expired on 15 June 1999
without the Italian Republic having brought into force the
necessary provisions in order to comply with the directive
referred to in the Commission’s application.

(1) OJ L 71, 10.3.1998, p. 1.

Action brought on 22 May 2001 by the Commission of
the European Communities against the Italian Republic

(Case C-210/01)

(2001/C 212/25)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 May
2001 by the Commission of the European Communities,
represented by Hans Støvlbæk and Roberto Amorosi, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with Com-
mission Directive 98/11/EC of 27 January 1998
implementing Council Directive 92/75/EEC with regard
to energy labelling of household lamps (1) or,
in any
event, by failing to forward them to the Commission, the
Italian Republic failed to fulfil its obligations under that
directive; and

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under Article 249 of the EC Treaty, according to which a
directive is to be binding, as to the result to be achieved, upon
each Member State to which it is addressed, Member States are
required to observe the time-limits laid down in directives for

Action brought on 23 May 2001 by Commission of the
European Communities against Council of the European
Union

(Case C-211/01)

(2001/C 212/26)

An action against Council of the European Union was brought
before the Court of Justice of the European Communities on
23 May 2001 by the Commission of the European Communi-
ties, represented by M. Wolfcarius, acting as Agent, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Council decisions of 19 March 2001 concern-
ing the conclusion of the agreement between the Euro-
pean Community and Bulgaria and Hungary (1) on trans-
port inasmuch as they are based on Article 93 EC whereas
the necessary and sufficient legal basis is Article 71 EC;

— maintain the effects of those agreements until the Council

adopts new measures;

— order the Council to pay the costs.

Pleas in law and main arguments

The proper legal basis for the adoption of the transport
agreements referred to is Article 71 EC, the only basis required
by the primary objective of the said instruments. The fiscal
element must form an integral part of those agreements
because it is involved in the objective of implementing the
common transport policy. Its role is to ensure that the system
of reciprocal authorisations, created under the agreements, is
run in a non-discriminatory manner.

The concurrent use of Article 93 EC as a legal basis is precluded
by the fact that Article 71 requires only qualified majority
voting in the Council, whereas Article 93 requires unanimity.
Admittedly, the problem regarding consultation of the Euro-
pean Parliament has not arisen in practice in light of
Article 300(3) which governs the conclusion of international
agreements. Nevertheless the possibility remains since the