Case C-475/01: Action brought on 6 December 2001 by the Commission of the European Communities against the Hellenic Republic
Date: 2002-03-16
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, alcohol, excise duty, tariff reduction

C 68/4

EN

Official Journal of the European Communities

16.3.2002

Appeal brought on 6 December 2001 by Procter &
Gamble Company against the judgment delivered on
19 September 2001 by the Second Chamber of the Court
of First Instance of the European Communities in case
T-128/00 (1) between Procter & Gamble Company and
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

(Case C-473/01 P)

(2002/C 68/08)

An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance
of the European Communities in case T-128/00 between
Procter & Gamble Company and Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) was
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.

The Appellant claims that the Court should:

— annul the judgment;
action was dismissed;

insofar as the remainder of the

— order the OHIM to pay the costs both at first instance

and on appeal.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance erred in
the following respects:

— in deeming it unnecessary to decide whether the distinc-
tive character of the Mark should be assessed by reference
to the date on which the application for registration is
filed or the date of actual registration;

— in holding that the level of attention given by the average
consumer to the shape and colours of washing machine
and dishwasher tablets is not high;

— in deeming it appropriate to ascertain whether the Marks
applied for will enable the members of the public targeted
to distinguish the products from those having a different
trade origin when they come to select a product for
purchase;

— in holding that

the bevelled edges, slightly rounded
corners or chamfered edges of the tablets are not likely to
be perceived by the average consumer as a distinctive
feature of the shape claimed, capable of distinguishing it
from other washing machine or dishwasher tablets and
in failing to assess whether such features were already
part of the usual get up(s) of thetablets on the market

at the relevant date and, if not, whether the difference is
perceptible, rendering it apt to confer distinctive character
on the Marks;

— in failing to assess whether the specific pattern (speckles
and square or triangular inlays in the centre and on the
upper surface of the tablet) was already part of the usual
get-ups of the tablets on the market at the relevant date
and, if not, whether the difference is perceptible, rendering
it apt to confer distinctive character on the Marks.

(1) OJ C 192, 8.7.2000, p. 25.

Action brought on 6 December 2001 by the Commission
the Hellenic
of

the European Communities against

Republic

(Case C-475/01)

(2002/C 68/09)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 6 Decem-
ber 2001 by the Commission of the European Communities,
represented by Maria Kondou-Durande and Enrico Traversa,
Legal Advisers.

The Commission claims that the Court should:

— declare that, by maintaining in force excise duty on ouzo
at a lower rate than that applied to other alcoholic
beverages, the Hellenic Republic has failed to fulfil its
obligations under the first paragraph of Article 90 of the
EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Law No 2127/93 transposes Directive 92/83/EEC (1)
into
Greek law. That Law sets the basic rate of excise duty at GRD
per 100 litres of pure alcohol. However, Article 26 of the Law
provides for a 50 % reduction in the basic rate with regard to
ouzo. Thus, for that particular product the excise duty amounts
to only GRD per 100 litres of pure alcohol.

16.3.2002

EN

Official Journal of the European Communities

C 68/5

The Commission concludes that the spirit and purpose of
Directive 92/83 do not allow the Member States to adopt
measures which result in discrimination against similar prod-
ucts imported from other Member States and that, in any
event, Article 23(2) of Directive 92/83 cannot under any
circumstances justify an infringement of Article 90 EC.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale per la Puglia by order of
10 October 2001 in the case of Anna Fascicolo and Others
against Regione Puglia and of Grazia Berardi and Others
against Azienda Unità Sanitaria Locale BA/4 and Others

That provision of the directive, which does not require, but
allows, a reduced rate to be applied to the product in question,
charges the Member State with the responsibility for examining
whether, on the basis of the particular circumstances of the
market, the difference in taxation gives rise to protection of a
domestic product and discrimination against imported prod-
ucts, in which case it must refrain from applying the reduced
rate.

A system of taxation can be considered compatible with the
first paragraph of Article 90 EC only if it is arranged in such a
way that it in any event precludes a higher charge being
imposed on imported products than on domestic products.

(1) OJ L 316, 31.10.1992, p. 21.

Reference for a preliminary ruling by the Verwaltungs-
gericht Mainz by order of 10 December 2001 in the case
of Emil Färber GmbH & Co. KG against Landkreis
Alzey-Worms

(Case C-2/02)

(2002/C 68/10)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Mainz (Administrative Court, Mainz) of 10 December 2001,
received at the Court Registry on 7 January 2002, for a
preliminary ruling in the case of Emil Färber GmbH & Co. KG
against Landkreis Alzey-Worms on the following question:

Is paragraph 2(a) of Chapter I of Annex A to Directive
85/73/EEC (1), in the version set out in Directive 96/43/EC (2),
to be interpreted as meaning that the standard fee governed by
that paragraph covering controls and inspections connected
with cutting operations is payable only in respect of meat that
is actually cut at a cutting plant, or is it to be interpreted as
meaning that such fee is payable in respect of all meat entering
the cutting plant, whether it is cut or not?

(1) OJ L 32, p. 14.
(2) OJ L 162, p. 1.

(Cases C-10/02 and C-11/02)

(2002/C 68/11)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Puglia (Regional Administrative Court,
Puglia) of 10 October 2001, received at the Court Registry on
15 January 2002, for a preliminary ruling in the case of Anna
Fascicolo and Others against Regione Puglia and of Grazia
Berardi and Others against Azienda Unità Sanitaria Locale
BA/4 and Otheres on the questions

1. whether, under Article 7(2) of Directive 86/457/EEC (1)
and Article 36(2) of Directive 93/16/EEC (2), for the
purpose of the exercise of general medical practice a right
to practise acquired on or before 31 December 1994 is
to be regarded as equivalent to the certificate of specific
training in general medical practice;

2. whether, pursuant to the abovementioned Community
provisions, with effect from 1 January 1995 the award of
a certificate of specific training in general medical practice
allows Member States to grant to doctors who also have
a right to practise acquired on or before 31 December
1994 more favourable terms in the form of access to a
wider range of reserved posts than that granted to the
holders of either one qualification or the other;

3.

if the previous question is answered in the affirmative,

whether, finally, in view of the rules applicable to acquired
rights, the abovementioned condition allows the Member
States to grant
the abovementioned doctors further
special treatment by in all cases granting them additional
points for obtaining the certificate of specific training in
general medical practice.

(1) OJ L 267, 19.9.1986, p. 26.
(2) OJ L 165, 7.7.1993, p. 1.