Case C-417/02: Action brought on 19 November 2002 by the Commission of the European Communities against the Hellenic Republic
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, architecture, free movement of workers, freedom to provide services, recognition of diplomas, right of establishment

C 19/16

EN

Official Journal of the European Communities

25.1.2003

Reference for a preliminary ruling by the Verwaltungsger-
ichtshof by order of that Court of 6 November 2002 in
the case of Spedition Ulustrans, Uluslararasi Nakliyat ve.
Tic. A.S. Istanbul against Finanzlandesdirektion Oberös-
terreich

(Case C-414/02)

(2003/C 19/27)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichtsh-
of (Administrative Court) of 6 November 2002, received at the
Court Registry on 19 November 2002, for a preliminary ruling
in the case of Spedition Ulustrans, Uluslararasi Nakliyat ve.
Tic. A.S. Istanbul against Finanzlandesdirektion Oberösterreich
(Regional Finance Directorate for Upper Austria) on the
following questions:

Does Paragraph 79(2) of the Zollrechtsdurchführungsgesetz
(Act to implement customs law, under which an employer or
undertaking incurs liability for a customs debt at the same
time as the employee or other person contracted by the
undertaking incurs liability for the debt, if that person has, in
the discharge of his employer’s or the undertaking’s affairs,
acted unlawfully with regard to customs obligations), widen
the meaning of the term ‘customs debtor’ in a manner that is
contrary to Article 202(3) of the Customs Code and therefore
incompatible with Community law?

new securities issued when a company or investment
fund is being set up or following the completion of an
increase in capital or during a loan issue,

the Kingdom of Belgium has failed to fulfil its obligations
under Article 11 of Council Directive 69/335/EEC of
17 July 1969 concerning indirect taxes on the raising of
capital (1);

— Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The taxes referred to in the forms of order sought are at
variance with Article 11 of the Directive in so far as they are
imposed on the delivery to the subscriber and/or the issue of
new securities. In those cases, the derogation provided for in
Article 12(1)(a) of the Directive, which allows Member States
to charge duties on the transfer of securities, is not applicable
because such a ‘transfer’ presupposes the existence of a
previous owner of the securities in question.

(1) OJ English Special Edition 1969(II), p. 412.

Action brought on 19 November 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Belgium

(Case C-415/02)

(2003/C 19/28)

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
19 November 2002 by the Commission of the European
Communities, represented by R. Lyal and Ch. Giolito, acting
as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— Rule that:

by imposing the ‘tax on stock-exchange transactions’ on
applications made in Belgium for new securities issued
when a company or investment fund is being set up or
following the completion of an increase in capital or
during a loan issue;

by imposing the ’tax on the delivery of securities to the
holder’ on the substantive issue to the holder of securities
relating to Belgian or foreign public funds, in the case of

Action brought on 19 November 2002 by the
Commission of the European Communities against the
Hellenic Republic

(Case C-417/02)

(2003/C 19/29)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 19 No-
vember 2002 by the Commission of the European Communi-
ties, represented by Maria Patakia, Legal Adviser in its Legal
Service.

The Commission claims that the Court should:

(a)

declare that,

— by enacting and retaining in force Article 3(1)(c) and

(2) of Presidential Decree 107/93, and

25.1.2003

EN

Official Journal of the European Communities

C 19/17

— by accepting the systematic refusal by the Tekhniko
Epimelitirio Elladas (TEE)
(Technical Chamber of
Greece), registration with which is an essential
precondition in order to pursue the profession of
architect in Greece, to register Community nationals
holding non-Greek qualifications which should be
recognised under Council Directive 85/384/EEC of
10 June 1985 on the mutual recognition of dip-
lomas, certificates and other evidence of formal
qualifications in architecture,
including measures
to facilitate the effective exercise of the right of
establishment and freedom to provide services (1),

the Hellenic Republic has failed to fulfil
gations under Articles 6(2), 10 and 12 of
directive;

its obli-
that

(b) order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission alleges that the Hellenic Republic has failed
to transpose Directive 85/384 into national
law correctly
inasmuch as the Greek legislation lays down: (i) a parallel
system for contesting diplomas, certificates and other evidence
of formal qualifications beyond that provided for by the
directive (referral to the advisory committee for architecture);
and (ii) an obligation on the other Member States beyond that
owed by them under Article 6(1) of the directive.

In addition, the Commission alleges that the defendant has
implemented the directive inappropriately by reason of incor-
rect administrative practice on the part of the Tekhniko
Epimelitirio Elladas (TEE). In its submission, the TEE either
does not examine in due time applications for entry on the
register or does not inform applicants, giving reasons, of the
refusal to register them.

( 1) OJ L 223, 21.8.1985, p. 15.

1. Does retail trading constitute a service within the meaning

of Article 2 of the Directive?

If the answer to this question should be affirmative:

2.

To what extent must the content of such services by a
retailer be specifically stated in order to guarantee the
certainty of the subject-matter of trade-mark protection
that is required in order to

(a)

fulfil the function of the trade mark pursuant to
Article 2 of the Directive, namely distinguishing the
goods or services of one undertaking from those of
other undertakings, and

(b) define the scope of protection of such a trade mark

in the event of a conflict?

3.

To what extent is it necessary to define the scope of
the
similarity (Article 4(1)(b) and Article 5(1)(b) of
Directive) between those services by a retailer and

(a)

the other services provided in connection with the
sale of goods, or

(b)

the goods sold by that particular retailer?

Appeal brought on 21 November 2002 by Europe Chemi-
Con (Deutschland) GmbH against the judgment delivered
on 12 September 2002 by the Fourth Chamber (Extended
Composition) of the Court of First Instance of the
European Communities in case T-89/00 (1) between Euro-
pe Chemi-Con (Deutschland) GmbH and the Council of
the European Union, supported by the Commission of
the European Communities

Reference for a preliminary ruling by the Bundespat-
entgericht by order of that Court of 15 October 2002 in
the appeal matter of PRAKTIKER Bau- und Heimwerker-
märkte AG

(Case C-422/02 P)

(2003/C 19/31)

(Case C-418/02)

(2003/C 19/30)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundespatentgericht
(Federal Patents Court) of 15 October 2002, received at the
Court Registry on 20 November 2002, for a preliminary ruling
in the appeal matter of PRAKTIKER Bau- und Heimwerker-
märkte AG on the following questions on the interpretation of
the First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ L 40 1989, p. 1):

An appeal against the judgment delivered on 12 September
2002 by the Fourth Chamber (Extended Composition) of the
Court of First Instance of the European Communities in case
T-89/00 between Europe Chemi-Con (Deutschland) GmbH
and the Council of the European Union, supported by the
Commission of
the European Communities, was brought
before the Court of Justice of the European Communities on
21 November 2002 by Europe Chemi-Con (Deutschland)
GmbH, established in Nuremberg (Germany), represented by
K. Adamantopoulos, J. J. Gutiérrez Gisbert and J. Branton,
lawyers, with an address for service in Luxembourg.