Case C-455/01: Action brought on 27 November 2001 by the Commission of the European Communities against the Italian Republic
Date: 2002-04-06
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, import licence, import restriction, intra-EU trade

6.4.2002

EN

Official Journal of the European Communities

C 84/39

(ii)

assignable

before they can be described a ‘goods’ that fall within the
provisions of 1993 Regulations and/or in the Directive?

Action brought on 27 November 2001 by the Com-
mission of the European Communities against the Italian
Republic

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof (Austria) by order of 19 October 2001 in the
case of 1. Margarete Ospelt, 2. Schlössle Weissenberg
Familienstiftung v Unabhängiger Verwaltungssenat des
Landes Vorarlberg

(Case C-452/01)

(2002/C 84/67)

Reference has been made to the Court of Justice of the
European Communities by order of 19 October 2001 by the
Verwaltungsgerichtshof (Higher Administrative Court, Aus-
tria), which was received at the Court Registry on 22 November
2001, for a preliminary ruling in the case of 1. Margarete
Ospelt, 2. Schlössle Weissenberg Familienstiftung v Unabhän-
giger Verwaltungssenat des Landes Vorarlberg on the following
questions:

1. Are Article 12 EC (ex Article 6 of the EC Treaty) and
Article 56 EC et seq. (ex Article 73b et seq. of the EC
Treaty) to be interpreted as meaning that rules whereby
transactions in agricultural and forestry plots are subject
to restrictions imposed by the administrative authorities
in the public interest of preserving, strengthening or
creating a viable farming community are also permitted
in relation to Member States of the EEA as ‘third countries’
under Article 56(1) EC (ex Article 73b of the EC Treaty)
having regard to the fundamental freedoms guaranteed
by an applicable law of the European Union, in particular
the free movement of capital?

2.

In the event that the first question is answered in the
affirmative:

Are Article 12 EC (ex Article 6 of the EC Treaty) and
Article 56 EC et seq. (ex Article 73b et seq. of the EC
Treaty) to be interpreted as meaning that the fact that the
appellant must, in the case of transfers of agricultural and
forestry plots, undergo an ‘authorisation procedure’ even
before the property right is entered in the land register,
pursuant to the (Voralberg) Gesetz über den Verkehr mit
Grundstücken (Land Transfer Law — VGVG 1993)
published in Voralberg LGBl. No 61/1993, entails an
infringement of Community law and of one of the
appellant’s fundamental freedoms guaranteed by the law
of the European Union, which is also applicable to
Member States of the EEA as ‘third countries’ under
Article 56(1) EC (ex Article 73b of the EC Treaty)?

(Case C-455/01)

(2002/C 84/68)

An action against the Italian Republic was brought before
Court of Justice on 27 November 2001 by the Commission of
the European Communities, represented by Richard B. Wain-
wright and Roberto Amorosi, acting as Agents.

The applicant claims that the Court of Justice should:

— Declare that, by keeping in force legislation under which
products in respect of which there has not yet been full
harmonisation,
intended for use on merchant vessels
flying the Italian flag, may be marketed only if a certificate
of conformity has been issued by a national body — so
that in some cases the right to market the products is
enjoyed only by the grantee of the certificate — and by
not recognising the validity of
in
tests carried out
standards by bodies
accordance with international
officially recognised in the other Member States or States
signatory to the EEA Agreement, even where the relevant
information is made available to the competent authority
and it is clear from the certificates that the equipment
guarantees an equivalent degree of safety, the Italian
Republic has
its obligations under
failed to fulfil
Articles 28 and 30 of the Treaty;

— Order the Italian Republic to pay the costs.

Pleas and principal arguments

The slavish application — when not justified by overriding
requirements — to goods lawfully produced and marketed in
other Member States of rules laid down for domestically
produced goods, and in particular the refusal to take account,
for the purposes of issuing ‘type approval declarations’, of
certificates accompanying such goods, even where they contain
the information needed to assess how safe they are, undoubt-
edly constitutes a measure having an effect equivalent to a
quantitative restriction on imports which is liable to hinder
intra-Community trade.

The foregoing is common ground. At issue is the measure
adopted by the Italian State in order to adjust its domestic
legislation to the principles laid down in Community law once

C 84/40

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Official Journal of the European Communities

6.4.2002

such legislation has been found to be non-compliant. It is
untenable to think that service order No 57/2000 of 4 August
2000 issued by the authority governing harbourmasters is
capable of amending Decree No 347/94 containing the
contested provisions.

In the Commission’s view, the Italian authorities are well aware
of the above considerations, as is clear from the undertaking
given several times — but so far not fulfilled — to make the
necessary amendments to Presidential Decree No 347/94 in
order to bring Italian legislation into line with Community
law.

Appeal brought on 28 November 2001 by Henkel KGaA
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-335/99, between
Henkel KGaA and the Office for Harmonization in the
Internal Market (Trade Marks and Designs)

Pleas in law and main arguments

Infringement of Article 7(1)(b) of Council Regulation No 40/94
on the Community trade mark (2). Contrary to the view of the
Court of First Instance, the mark applied for lacks distinctive
character. At the time of the application, neither the tablet
shape nor the colour combination, and especially the combi-
nation of the two, were typical for a washing powder and they
were certainly not technically necessary.

Contrary to the view taken by the Court of First Instance, there
is no reason why consumers should in principle be regarded
as less attentive when purchasing goods for everyday use;
rather, the opposite is true.

In the alternative: even if the time of registration were decisive,
the possibility cannot be ruled out that the contested trade
mark application could serve to designate the origin of the
goods, since it is prohibited, when considering the list of
goods, to rule out distinctiveness on the grounds that there
may be similarities between the goods. That approach conflates
to an unacceptable degree the issue of registrability with that
of scope of protection, or likelihood of confusion. Even where
a mark is confusingly similar, it is for the proprietor of the
mark having priority to obtain refusal of the earlier mark
under Article 8 of Regulation 40/94.

(Case C-456/01 P)

(2002/C 84/69)

(1) Not yet published in the court reports.
(2) OJ L 11, p. 1.

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-335/99, between Henkel
KGaA and the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (1), was brought before the Court of
the European Communities on 28 November
Justice of
2001 by Henkel KGaA, represented by Rechtsanwälte Holger
Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— partially annul the judgment of the Court of First Instance
of the European Communities of 19 September 2001 in
Case T-335/999, served on 1 October 2001;

annul the decision of the Third Board of Appeal of the
Office for Harmonisation in the Internal Market of
21 September 1999 in Case R 71/1999-3 relating to
Community trade mark application number 703 231;

— order the Office for Harmonisation in the Internal Market

to pay the costs of the proceedings.

Appeal brought on 28 November 2001 by Henkel KGaA
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-336/99, between
Henkel KGaA and the Office for Harmonization in the
Internal Market (Trade Marks and Designs)

(Case C-457/01 P)

(2002/C 84/70)

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-335/99, between Henkel
KGaA and the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (1), was brought before the Court of
Justice of
the European Communities on 28 November
2001 by Henkel KGaA, represented by Rechtsanwälte Holger
Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
an address for service in Luxembourg.