Case C-86/02: Action brought on 13 March 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-06-01
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, explosive, export, free circulation, infringement of EU law, marketing, single market, trade restriction

1.6.2002

EN

Official Journal of the European Communities

C 131/3

Is a provision of national law, in casu Paragraph 60(1) and (2)
of the Markenschutzgesetz (Austrian Law on the Protection of
in conjunction with Paragraph 10a thereof,
Trademarks),
which may be interpreted as meaning that the mere transit of
goods manufactured/distributed in contravention of provisions
of the law on trademarks is not punishable under criminal law,
contrary to Article 2 of Council Regulation (EC) No 3295/
94 (1) of 22 December 1994 laying down measures to prohibit
the release for free circulation, export, re-export or entry for a
suspensive procedure of counterfeit and pirated goods, as
amended by Council Regulation (EC) No 241/1999 (2) of
25 January 1999?

(1) OJ L 341, p. 8.
(2) OJ L 27, p. 1.

Reference for a preliminary ruling by the Hof van Cassatie
by judgment of that Court of 28 February 2002 in the
case of Agence Maritime Lalemant against 1. Malzfabrik
Tivoli GmbH, 2. Malteurop G.I.E, 3. Belgische Interventie-
en Restitutiebureau and Malzfabrik Tivoli GmbH against
Belgische Interventie- en Restitutiebureau

(Case C-82/02)

(2002/C 131/06)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hof van Cassatie
(Belgian Court of Cassation) of 28 February 2002, received at
the Court Registry on 12 March 2002, for a preliminary ruling
in the case of Agence Maritime Lalemant against 1. Malzfabrik
Tivoli GmbH, 2. Malteurop G.I.E, 3. Belgische Interventie- en
Restitutiebureau and Malzfabrik Tivoli GmbH against Belgische
Interventie- en Restitutiebureau on the following question:

Must Article 9(1) of Commission Regulation (EEC) No 2730/
79 (1) of 29 November 1979 laying down common detailed
rules for the application of the system of export refunds on
agricultural products be interpreted as meaning that goods
exported to non-member countries and in respect of which
customs export formalities have been completed are to be
regarded as having left
the
Community when they actually leave the territory of the
Community or when they are placed in a customs warehouse?

the geographical

territory of

Action brought on 13 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-86/02)

(2002/C 131/07)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 13 March 2002 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of its
Legal Service, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of its Legal Service, C 254,
Wagner Centre, Kirchberg.

The applicant claims that the Court should:

(1) declare that, by adopting Paragraph 1(6) and Para-
graph 1.44 of the SprengA¨ ndG 1997 of 23 June 1998,
the Federal Republic of Germany has failed to fulfil its
obligations,
imposed on it by the first paragraph of
Article 10 and the third paragraph of Article 249 of the
EC Treaty, to comply with Directive 93/15/EEC (1) and
has failed to comply with its obligations arising from the
first paragraph of Article 226 of the EC Treaty;

(2) order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Commission objects to the provision whereby explosives,
apart from those intended for export to, or introduction into,
another Member State, may only be used or relinquished to
others if
they bear an identification mark issued by the
für Materialforschung und -prüfung (BAM)
Bundesanstalt
(Federal Institute for Materials Research and Testing). The fact
that, as a result of provisional measures taken by the BAM,
that obstacle to trade no longer exists is not enough to cure
the infringement of Community law.

The transitional provision contained in Paragraph 1.44 of the
German statute could lead to serious distortions of the internal
market, since explosives which may be freely placed on the
market within the Community pursuant to the provisions of
the directive are not permitted on the German market, whereas
explosives which should no longer feature on the market after
the expiry of the transitional period might be allowed in
Germany.

(1) OJ L 317, 1979, p. 1.

(1) OJ L 121 of 15.5.1993, p. 20.