Case C-406/02: Action brought on 13 November 2002 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-01-11
Institutions: Court of Justice
Subjects: Belgium, action for failure to fulfil an obligation, disclosure of information, environmental protection, report, standardisation

11.1.2003

EN

Official Journal of the European Communities

C 7/15

Reference for a preliminary ruling by the High Court of
Justice (England and Wales) (Chancery Division) by order
of that court dated 3 September 2002, in the case of
Nichols plc against the Registrar of Trade Marks

practice, deceiving the public by the use of his own name
or (ii) the Defendant is merely causing unintentional
confusion thereby?

(1) First Council Directive, of 21 December 1988, to approximate
the laws of the Member States relating to trade marks (OJ L 40,
11.02.1989, p. 1).

(Case C-404/02)

(2003/C 7/27)

Reference has been made to the Court of Justice of the
European Communities by an order of
the High Court
of Justice (England and Wales)
(Chancery Division) dated
3 September 2002, which was received at the Court Registry
on 12 November 2002, for a preliminary ruling in the case of
Nichols plc and the Registrar of Trade Marks on the following
questions:

Action brought on 13 November 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Belgium

(Case C-406/02)

(2003/C 7/28)

1.

2.

3.

4.

5.

In what circumstances, if any, must a trade mark (i.e. a
‘sign’ which complies with the requirements of Article 2
of the Trade Marks Directive 89/104/EC (1) consisting of
a single surname be refused registration as being in itself
‘devoid of any distinctive character’ within the meaning
of Article 3(1) (b) of the Directive?

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
13 November 2002 by the Commission of the European
represented by Bruno Stromsky, acting as
Communities,
Agent.

In particular (a) must or (b) may such a sign, before it
has acquired distinctive character by use, be refused
registration if it is a common surname in the Member
State in which the trade mark is sought to be registered
or if it is a common surname in one or more of the other
Member States?

If the answer to either Question 2 (a) or (b) is in the
affirmative, is it appropriate for national authorities to
determine the matter by reference to the presumed
expectations of an average customer in relation to the
goods/services in question in the Member State, taking
into account the commonness of the surname, the nature
of the goods/services at issue, and the prevalence (or
otherwise) of the use of surnames in the relevant trade?

Is it of significance for the purpose of determining
whether a surname is ‘devoid of any distinctive character’
within Article 3(1) (b) of the Directive that the effects
of registration of the trade mark are restricted under
Article 6(1) (a)?

If so, (a) is the word ‘person’ in Article 6(1) (a) of the
Directive to be understood as including a corporation or
a business and (b) what amounts to ‘honest practices in
industrial or commercial matters’; in particular, does that
in
expression apply where (i)

the Defendant

is not,

The applicant claims that the Court should:

1. Declare that, by failing to send, within the prescribed
period, the reports relating to Directives 76/464/EEC (1),
78/659/EEC (2) and 80/68/EEC (3) in respect of the Brux-
elles-Capitale Region, the Kingdom of Belgium has failed
to fulfil its obligations under Council Directive 91/692/
EEC of 23 December 1991 standardizing and rationaliz-
ing reports on the implementation of certain Directives
relating to the environment (4);

2. Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

Under Article 2 of Directive 91/692/EEC, Belgium should have
sent to the Commission a report covering the period from
1993 to 1995 inclusive, drawn up on the basis of a question-
naire laid down in Decision 92/446/EEC and sent to Belgium
in good time. Belgium was to have sent the report in question
by 30 September 1996 at the latest. However, not all of
those data were forwarded to the Commission within the
abovementioned period so far as concerns the Bruxelles-
Capitale Region:

— As regards amended Directive 76/464/EEC, no data was

forwarded in respect of the years 1993 to 1995;

C 7/16

EN

Official Journal of the European Communities

11.1.2003

— As regards amended Directive 78/659/EEC, not all of
the requisite information was forwarded — thus, the
Commission had no information regarding the total
surface or length of water supporting fish life, nor
whether the waters complied with the parameters laid
down in that directive;

— As regards amended Directive 80/68/EEC, not all of
the requisite information was forwarded — thus, the
Commission did not receive the requested information
relating to authorisations, the measuring system and
ground water.

The Commission points out that at the expiry of the period
granted to the Kingdom of Belgium by the reasoned opinion,
the missing information had still not been received by the
Commission, the explanation for such absence of information
being that the competent authorities did not ensure collection
of the data necessary for the drawing up of the reports in
question.

( 1) Council Directive 76/464/EEC of 4 May 1976 on pollution caused
by certain dangerous substances discharged into the aquatic
environment of the Community (OJ 1976 L 129, p. 23).

( 2) Council Directive 78/659/EEC of 18 July 1978 on the quality of
fresh waters needing protection or improvement in order to
support fish life (OJ 1978 L 222, p. 1).

( 3) Council Directive 80/68/EEC of 17 December 1979 on the
protection of groundwater against pollution caused by certain
dangerous substances OJ 1980 L 20, p. 43).

( 4) OJ 1991 L 377, p. 48

Reference for a preliminary ruling by the Cour de
Cassation du Grand-Duché de Luxembourg by judgment
of that Court of 31 October 2002 in the case of José
Antonio Da Silva Carvalho against Ministère Public

(Case C-408/02)

(2003/C 7/29)

another Member State, rely on the directive in order to obtain
from the State of residence recognition of the licence issued in
the State of origin and thereby escape being charged with
driving without a valid licence?

(1) Council Directive 91/439/EEC of 29 July 1991 on driving licences

(OJ L 237 of 24.08.1991, p. 1).

Action brought on 18 November 2002 by the Com-
mission of the European Communities against Ireland

(Case C-410/02)

(2003/C 7/30)

An action against Ireland was brought before the Court of
Justice of the European Communities on 18 November 2002
by the Commission of the European Communities, represented
by L. Ström and X. Lewis, acting as agents, with an address for
service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that by failing to adopt the laws, regulations
or administrative provisions necessary to comply with
Commission Directive 2001/8/EC (1) of 8 February 2001
replacing Annex I to Council Directive 92/109/EEC on
the manufacture and placing on the market of certain
substances used in the illicit manufacture of narcotic
drugs and psychotropic substances or, in any event, by
failing to notify such provisions to the Commission,
Ireland has failed to fully fulfil
its obligations under
Article 2 of this directive;

2)

order Ireland to pay the costs.

Pleas in law and main arguments

Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour de Cassation
du Grand-Duché de Luxembourg of 31 October 2002, received
at the Court Registry on 15 November 2002, for a preliminary
ruling in the case of José Antonio Da Silva Carvalho against
Ministère Public on the following question:

Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 1 March 2001 without Ireland having enacted the
provisions necessary to comply with the directive referred to
in the conclusions of the Commission.

On a proper interpretation of Article 1(2) and (3) of Council
Directive 91/439/EEC of 29 July 1991 (1), may a person who
has obtained a driving licence during a brief stay in his country
of origin, at a time when he was already normally resident in

(1) OJ L 39, 09.02.2001, p. 31.