Case C-218/01: Reference for a preliminary ruling by the Bundespatentgericht by order of that court of 10 April 2001 in the case of Henkel KGaA
Date: 2001-08-11
Institutions: Court of Justice
Subjects: interpretation of the law, packaging, trade mark, trade-mark law

C 227/10

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Official Journal of the European Communities

11.8.2001

6.

Prior
to the entry into force of Regulation (EC)
No 2700/2000 (2) of the European Parliament and of
the Council of 16 November 2000, which amended
Article 221(3) of the Community Customs Code, was
there any provision of Community law which provided
for the suspension of the period of three years for post-
clearance recovery as soon as an appeal is lodged?

Reference for a preliminary ruling by the Tribunal
Superior de Justicia, Castilla-La-Mancha, Sala de lo Conten-
cioso-Administrativo del Tribunal, Seccio´ n Segunda, by
order of 3 April 2001 in the case of Isabel Parras Medina
and Adelina Paras Medina v Conséjeria de Agricultura de
la Junta, de Comunidades de Castilla-La-Mancha

(1) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
post-clearance recovery of import duties or export duties which
have not been required of the person liable for payment on goods
entered for a customs procedure involving the obligation to pay
such duties (OJ 1979 L 197, p. 1).
(2) Regulation (EC) No 2700/2000 of

the European Parliament
and of the Council of 16 November 2000 amending Council
Regulation (EEC) No 2913/92 establishing the Community Cus-
toms Code (OJ 2000 L 311, p. 17).

Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of that court of 25 April 2001 in the
case of Dr Tilmann Klett against the Federal Minister for
Education, Science and Culture

(Case C-204/01)

(2001/C 227/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof of 25 April 2001, received at the Court Registry on
16 May 2001,
for a preliminary ruling in the case of
Dr Tilmann Klett against the Federal Minister for Education,
Science and Culture on the following question:

Are Article 19b of Council Directive 78/686/EEC (1) of 25 July
1978 concerning the mutual recognition of diplomas, certifi-
cates and other evidence of
the formal qualifications of
practitioners of dentistry, including measures to facilitate the
effective exercise of the right of establishment and freedom to
provide services, as amended by the Act of Accession, Official
Journal C 241 of 29 August 1994; p. 218, Article 12 EC and
Article 39 EC, and Article 1; read in conjunction with Article 3
and Article 9, of Council Directive 93/16/EEC (2) to facilitate
the free movement of doctors and the mutual recognition of
formal
their diplomas, certificates and other evidence of
qualifications, to be interpreted as precluding legislation under
which admission to a training course in dentistry covered by
Article 19b of Directive 78/686/EEC requires a degree in
medicine obtained at an Austrian university?

(1) OJ 1978 L 233, p. 1.
(2) OJ 1993 L 165, p. 1.

(Case C-208/01)

(2001/C 227/16)

Reference has been made to the Court of Justice of the
European Communities by order of 3 April 2001 by the
Tribunal Superior de Justicia, Castilla-La-Mancha, Sala de lo
Contencioso-Administrativo del Tribunal, Seccio´ n Segunda
(Second section of the Administrative-law Chamber of the
High Court of Justice, Castilla-La-Mancha) which was received
at the Court Registry on 18 May 2001, for a preliminary ruling
in the case of Isabel Parras Medina and Adelina Paras Medina v
Conséjeria de Agricultura de la Junta de Comunidades de
Castilla-La-Mancha on the following questions:

1. Must the scope of the concept of force majeure used in
Article 12 of Regulation No 1294/96 of 4 July 1996 be
altered so as to equate to that of unforeseen and
compelling circumstances, as described in this decision,
of such a kind that negligence as regards compliance with
the time-limit in question would not be regarded as such?

2. Are the consequences provided for in the abovemen-
tioned Article 12 in the nature of a sanction or a penalty
and, if that is the a case, does that fact contribute to the
need to alter the scope of the said concept of force majeure?

Reference for a preliminary ruling by the Bundespa-
tentgericht by order of that court of 10 April 2001 in the
case of Henkel KGaA

(Case C-218/01)

(2001/C 227/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundespatentgericht
(Federal Patents Court) of 10 April 2001 which was received
at the Court Registry on 29 May 2001, for a preliminary ruling
in the case of Henkel KGaA on the following questions on the
interpretation of Article 3(1)(b), (c) and (e) of First Council
Directive 89/104/EEC(1) of 21 December 1988 to approximate
the laws of the Member States relating to trade marks (OJ
1989 L 40, p. 1):

1.

In the case of three-dimensional trade marks which
consist of the packaging of goods which are normally
traded in packaged form (such as liquids, for example) is
the packaging of the goods to be equated with the shape
of the goods for the purpose of trade mark law in such a
way that

11.8.2001

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Official Journal of the European Communities

C 227/11

(a)

(b)

the packaging of the goods is to be regarded as the
shape of the goods for the purpose of Article 3(1)(e)
of the directive; and

the packaging of the goods may serve to designate
the (external) quality of the packaged goods for the
purpose of Article 3(1)(c) of the directive?

In the case of three-dimensional trade marks which
consist of the packaging of goods which are normally
traded in packaged form does the establishment of
distinctive character within the meaning of Article 3(1)(b)
of the directive turn on whether or not the average
consumer, who is reasonably well-informed and reason-
ably observant and circumspect, is able to recognise the
characteristic features of
trade
mark applied for, which differ from the norm or custom
in the sector and are therefore decisive as regards its
capability of serving as an indication of origin, even
without conducting an analytical or comparative examin-
ation or without paying particular attention?

the three-dimensional

Can the necessary assessment of distinctive character be
made solely on the basis of the relevant national trade
perceptions without further official investigations being
necessary to establish whether and to what extent ident-
ical or comparable trade marks have been registered or
refused registration in other Member States of the Euro-
pean Union?

2.

3.

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

Action brought on 5 June 2001 by the Commission of the
European Communities against the Kingdom of Belgium

(Case C-221/01)

(2001/C 227/18)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 5 June
2001 by the Commission of the European Communities,
represented by H. van Lier, acting as Agent, with an address
for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— Declare, pursuant to Article 226 EC, that by failing to
adopt all the laws, regulations or administrative pro-
visions necessary to comply with Directive 97/33/EC of
the European Parliament and of the Council of 30 June
1997 on interconnection in Telecommunications with
regard to ensuring universal service and interoperability
through application of the principles of Open Network
Provision (ONP) (1), in particular with Articles 7(5), 9(3)
and 14(1) and (2) thereof, Belgium has failed to fulfil its
obligations under that directive; and

— Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

— Failure correctly to transpose Article 7(5) of Directive
97/33/EC: under the last two sentences of the second
subparagraph of Article 7(5) of Directive 97/33, com-
pliance with the cost accounting system must be verified.
The Directive states that a statement concerning com-
pliance must, in addition, be published annually. Those
obligations are not included in the Belgian legislation.

— Failure correctly to transpose Article 9(3) of Directive
97/33/EC: the provisions communicated by the Belgian
authorities as implementing measures, namely the fifth
subparagraph of Article 109B(4) of the Law of 21 March
1991 and Articles 8 and 12 of a decree of 20 April 1999,
only partially cover the obligations imposed by the
Directive, since Article 109B(4) concerns solely the
obligation imposed by the Belgian legislature on organis-
ations with ‘significant [market] power’ to publish a
reference offer which may be used as a basis for
subsequent negotiations; it is that reference offer which
may be changed by the Institute, a possibility which
clearly cannot be construed as a right of intervention in
favour of that institute in any negotiation or discussion
concerning an interconnection agreement. Nor do the
provisions of the Decree of 20 April 1999 provide for
the regulatory authorities to be able to intervene in the
negotiations ‘on their own initiative at any time’.

— Failure correctly to transpose Article 14(1) and (2): in
respect of
the information relating to the reference
interconnection offer, which is identified in Article 7(3)
of the Directive, and the main elements of the national
numbering plans referred to in Article 12(4) of the
Directive, the Belgian authorities have opted for a means
of communication in accordance with Article 14(2)
of the Directive, whereas Article 7(3)
is covered by
Article 14(1) which requires easy access to the infor-
mation and therefore access which is more direct than
that by individual request. In respect of the information
referred to in Article 9(2) of
the Directive (general
interconnection) and the information
conditions of
referred to in Article 10 of the Directive, the Belgian
legislation does not provide for any publication or
communication in any form whatever. Finally, in respect
of the information referred to in Article 9(3) of the
Directive, the Belgian legislation still does not provide for
access at the request of interested parties.

(1) OJ L 199 of 26.07.1997, p. 32.