Judgment of the Court (Sixth Chamber) of 21 November 2002 in Case C-23/01 (Reference for a preliminary ruling from the Hof van Beroep te Brussel): Robelco NV v Robeco Groep NV (Directive 89/104/EEC — Article 5(5) — Provisions on protection against use of a sign other than for the purposes of distinguishing goods or services — Extent of such protection — Signs similar to the mark)
Date: 2003-01-11
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, labelling, trade mark, trade-mark law

C 7/4

EN

Official Journal of the European Communities

11.1.2003

1. Articles 43 EC and 48 EC preclude a national provision such
as that at issue in the main proceedings, which excludes the
transferor at undervalue of shares in companies from the benefit
of deferral of tax due on capital gains made on those shares
where the transfer is to a foreign legal person in which the
transferor directly or indirectly has a holding — provided that
that holding gives him definite influence over the decisions of
that foreign legal person and allows him to determine its
activities — or to a Swedish limited company which is a branch
of such a foreign legal person.

2. Articles 56 EC and 58 EC preclude a national provision such
as that at issue in the main proceedings, which excludes the
transferor at undervalue of shares in companies from the benefit
of deferral of tax due on capital gains made on those shares
where the transfer is to a foreign legal person in which the
transferor directly or indirectly has a holding which is not such
as to give him definite influence over the decisions of that
foreign legal person or allow him to determine its activities.

preliminary ruling in the proceedings pending before that
court between Cofidis SA and Jean-Louis Fredout, on the
interpretation of Council Directive 93/13/EEC of 5 April 1993
on unfair terms in consumer contracts (OJ 1993 L 95,
p. 29), the Court (Fifth Chamber), composed of: M. Wathelet,
Timmermans,
President
the
D.A.O. Edward, A. La Pergola and P.
Jann (Rapporteur),
Judges; A. Tizzano, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on
21 November 2002, in which it has ruled:

Chamber,

C.W.A.

of

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
consumer contracts precludes a national provision which, in proceed-
ings brought by a seller or supplier against a consumer on the basis
of a contract concluded between them, prohibits the national court,
on expiry of a limitation period, from finding, of its own motion or
following a plea raised by the consumer, that a term of the contract
is unfair.

( 1) OJ C 45 of 10.2.2001.

(1) OJ C 61 of 24.2.2001.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 21 November 2002

(Sixth Chamber)

of 21 November 2002

in Case C-473/00 (Reference for a preliminary ruling from
the tribunal d’instance de Vienne): Cofidis SA v Jean-
Louis Fredout (1)

in Case C-23/01 (Reference for a preliminary ruling from
the Hof van Beroep te Brussel): Robelco NV v Robeco
Groep NV (1)

(Directive 93/13/EEC — Unfair terms in consumer contracts
— Action brought by a seller or supplier — National
provision prohibiting the national court from finding a term
unfair, of its own motion or following a plea raised by the
consumer, after the expiry of a limitation period)

(Directive 89/104/EEC — Article 5(5) — Provisions on
protection against use of a sign other than for the purposes
of distinguishing goods or services — Extent of such
protection — Signs similar to the mark)

(2003/C 7/06)

(Language of the case: French)

(2003/C 7/07)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-473/00: Reference to the Court under Article 234
for a
EC by the Tribunal d’instance de Vienne (France)

In Case C-23/01: Reference to the Court under Article 234 EC
by the Hof van Beroep te Brussel (Belgium) for a preliminary
ruling in the proceedings pending before that court between

11.1.2003

EN

Official Journal of the European Communities

C 7/5

Robelco NV and Robeco Groep NV on the interpretation
of Article 5(5) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (OJ 1989 L 40, p. 1), the Court
(Sixth Chamber), composed of: R. Schintgen, President of the
Second Chamber, acting for the President of the Sixth Chamb-
er, V. Skouris, F. Macken (Rapporteur), N. Colneric and
J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advo-
cate General; L. Hewlett, Principal Administrator,
for the
Registrar, has given a judgment on 21 November 2002, in
which it has ruled:

Article 5(5) of First Council Directive 89/104/EEC of 21 December
1988 to approximate the laws of the Member States relating to
trade marks must be interpreted as meaning that a Member State
may, if it sees fit, and subject to such conditions as it may determine,
protect a trade mark against use of a sign other than for the purposes
of distinguishing goods or services, where use of that sign without
due cause takes unfair advantage of, or is detrimental
to, the
distinctive character or the repute of the trade mark.

of public policy, public security or public health (OJ, English
Special Edition 1963-1964, p. 117), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
Judges; A. Tizzano, Advocate General; M.-F. Contet, Adminis-
trator, for the Registrar, has given a judgment on 26 November
2002, in which it has ruled:

Neither Article 48 of
the EC Treaty (now, after amendment,
Article 39 EC) nor the provisions of secondary legislation which
implement the freedom of movement for workers preclude a Member
State from imposing, in relation to a migrant worker who is a
national of another Member State, administrative police measures
limiting that worker’s right of residence to a part of the national
territory, provided

— that such action is justified by reasons of public order or public

security based on his individual conduct;

( 1) OJ C 79 of 10.3.2001.

— that, by reason of

their

could
otherwise give rise only to a measure prohibiting him from
residing in, or banishing him from, the whole of the national
territory; and

those reasons

seriousness,

— that the conduct which the Member State concerned wishes to
prevent gives rise, in the case of its own nationals, to punitive
measures or other genuine and effective measures designed to
combat it.

JUDGMENT OF THE COURT

of 26 November 2002

(1) OJ C 108 of 7.4.2001.

in Case C-100/01 (Reference for a preliminary ruling from
the Conseil d’État): Ministre de l’Intérieur v Aitor Oteiza
Olazabal (1)

(Freedom of movement for persons — Restrictions — Public
policy (ordre public) — Police measures limiting the right of
residence of a national of another Member State to part of
the national territory)

(2003/C 7/08)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-100/01: Reference to the Court under Article 234
EC by the Conseil d’État (France) for a preliminary ruling in
the proceedings pending before that court between Ministre
de l’Intérieur and Aitor Oteiza Olazabal, on the interpretation
of Articles 6, 8a and 48 of
the EC Treaty (now, after
amendment, Articles 12 EC, 18 EC and 39 EC) and of Council
Directive 64/221/EEC of 25 February 1964 on the co-
ordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds

JUDGMENT OF THE COURT

(Sixth Chamber)

of 26 November 2002

in Case C-202/01: Commission of the European Communi-
ties v French Republic (1)

(Failure by a Member State to fulfil
its obligations —
Directive 79/409/EEC — Conservation of wild birds —
Classification as special protection areas — Plaine des
Maures)

(2003/C 7/09)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-202/01, Commission of the European Communities
(Agents: G. Valero Jordana and J. Adda) v French Republic