Case C-216/01: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 26 February 2001 in the case of Budejovicky Budvar, n.p. v Rudolf Ammersin GmbH
Date: 2001-09-01
Institutions: Court of Justice
Subjects: EU Member State, bilateral agreement, designation of origin, interpretation of the law, location of production, third country

1.9.2001

EN

Official Journal of the European Communities

C 245/3

The appellant claims that the Court should:

1.

1.

set aside the contested judgment in so far as the Court
of First Instance dismissed the plea in law, that the
Commission wrongly failed to take into account the
quantity judicially determined by the Finanzgericht Ham-
burg in calculating the reference quantity for the years
1997 to 1999 (paragraph 88); and

2.

order the Commission to pay the costs

Is the application of a provision of a bilateral agreement
concluded between a Member State and a non-member
country, under which a simpe/qualified geographical
indication which in the country of origin is the name
neither of a region nor a place nor a country is accorded
the absolute protection, regardless of any misleading, of
a qualified geographical indication within the meaning of
Regulation No 2081/92 (1), compatible with Article 28 EC
and/or Regulation No 2081/92, if on application of that
provision the import of a product which is lawfully
put on the market in another Member State may be
prevented?

Pleas in law and main arguments

The Court of First Instance fails to take proper account of the
scope of Article 5(2) and (3) of Regulation No 2362/98 (1). In
accordance with that provision, any customs duty paid in
respect of the quantity imported constitutes sufficient evidence
of the reference quantity to which the operator is entitled. The
relevant duty is that which was due from the importer on the
day of importation. The duty applicable to the appellant on
the day of importation was the quota duty, which the Court of
First Instance fails to take into account. The Finanzgericht
Hamburg had made an interim order to the effect that the
customs must accept the importation of the ‘quantity judicially
determined’ without a certificate, provided the quota duty was
paid. The competent Hauptzollamt had decided that the duty
due from the appellant was the quota duty. The appellant
actually paid it. In relation to the question of actual payment
of the customs duty by the appellant in its capacity as importer,
the fact that the appeal court annulled the interim order of the
Finanzgericht Hamburg, and that
the Hauptzollamt sub-
sequently amended the duty notice and determined the normal
In relation to the quantity judicially
duty,
determined, it is obvious from the wording of Article 5(3)(b)
that the duty determined by the customs authorities on the
day of
importation and paid for the quantity imported
constitutes sufficient evidence of the reference quantity to
which the appellant was entitled.

is irrelevant.

2. Does this apply also where the geographical indication
which in the country of origin is the name neither of a
region nor a place nor a country is not understood in the
country of origin as a geographical designation for a
specific product, and also not as a simple or indirect
geographical indication?

3. Do the answers to Questions 1 and 2 apply also where
is an agreement which the
the bilateral agreement
Member State concluded before its accession to the
European Union and continued after its accession to the
European Union with a successor State to the original
other State party to the agreement by means of a
declaration of the Federal Government?

4. Does the second paragraph of Article 307 EC oblige the
Member State to interpret such a bilateral agreement,
concluded between that Member State and a non-member
country before the Member State’s accession to the
EU,
in conformity with Community law as stated in
Article 28 EC and/or Regulation No 2081/92, so that
the protection laid down therein for a simple/indirect
geographical indication which in the country of origin is
the name neither of a region nor a place nor a country
comprises merely protection against misleading and
not the absolute protection of a qualified geographical
Regulation
indication within
No 2081/92?

the meaning

of

(1) OJ 1998 L 293, p. 32.

(1) OJ L 208 of 24.7.1992, p. 1.

Reference for a preliminary ruling from the Handels-
gericht Wien by order of that court of 26 February
2001 in the case of Budejovicky Budvar, n.p. v Rudolf
Ammersin GmbH

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of 24 April 2001 in the case of British
American Tobacco Manufacturing B.V. v Hauptzollamt
Krefeld

(Case C-216/01)

(2001/C 245/05)

(Case C-222/01)

(2001/C 245/06)

Reference has been made to the Court of Justice of the
European Communities by an order of the Handelsgericht
Wien (Commercial Court, Vienna) of 26 February 2001, which
was received at the Court Registry on 25 May 2001, for a
preliminary ruling in the case of Budejovicky Budvar, n.p. v
Rudolf Ammersin GmbH on the following questions:

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 24 April 2001, received at the Court
Registry on 5 June 2001, for a preliminary ruling in the
case of British American Tobacco Manufacturing B.V. v
Hauptzollamt Krefeld on the following questions: