Case C-422/02 P: 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 between Europe Chemi-Con (Deutschland) GmbH and the Council of the European Union, supported by the Commission of the European Communities
Date: 2003-01-25
Institutions: Court of Justice
Subjects: General Court (EU), Germany, action for annulment (EU), anti-dumping legislation, electronic component, import

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.

C 19/18

EN

Official Journal of the European Communities

25.1.2003

The Appellant claims that the Court should:

1.

set aside the judgment of the Court of First Instance of
12 September 2002 in case T-89/00;

2. make an order that the costs of and occasioned by these
proceedings, and those before the Court of First Instance,
be borne by the Council;

3.

annul the last indent of Article 3 of Council Regulation
(EC) No. 173/2000 of 24 January 2000 terminating the
anti-dumping proceedings concerning imports of certain
large aluminium electrolytic capacitors (‘LAECs’) originat-
ing in Japan, the Republic of Korea and Taiwan (2) in so
far as it does not state that the retroactive effect of this
Regulation shall apply from 4 December 1997 onwards;
or, in the alternative, refer the case back to the Court of
First Instance.

Finally, notwithstanding that the Appellant’s case is not based
on an infringement of the general principle of equal treatment,
the Appellant maintains that the Court of First Instance erred
in law in any event (and failed to give adequate reasoning)
when concluding in paragraph 57 of the judgment that the
difference in legal basis for the application of anti-dumping
duties against LAECs from the U.S.A. and Thailand on the one
hand, and Japan on the other, was sufficient reason to
render the principle of equal treatment inapplicable in the
circumstances of the present case.

(1) OJ C 163, 10.06.2000, p. 32.
(2) OJ L 22, 27.01.2000, p. 1.
(3) Council Regulation (EC) No. 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, 06.03.1996, p. 1).

Pleas in law and main arguments

The Appellant submits that the Court of First Instance wrongly
substituted its own understanding for what the Appellant had
claimed by stating in paragraph 48 of the judgment that the
Appellant had ‘essentially alleged an error in law with respect
to the application of the principle of equal treatment in the
Contested Regulation’. Rather, the Court of First Instance
should have held that the Appellant had essentially alleged an
error in law with respect to the application of the principle of
non discrimination, as laid down in Article 9(5) of the Basic
Anti-Dumping Regulation (‘BR’) (3), to the facts of the present
case. Had the Court of First Instance properly considered the
application of the principle of non discrimination laid down
in Article 9(5) BR, rather than concentrating on the principle of
equal treatment, it should have reached a different conclusion.

The Appellant also submits that the Court of First Instance
erred in law by concluding in paragraph 58 of the judgment
in relation to Article 9(5) BR that:

(i) Article 9(5) BR relates only to the initial imposition of

anti-dumping duties;

(ii) Article 9(5) BR does not necessarily apply to the mainten-
ance in force of anti-dumping duties, pursuant
to
Article 11(2) BR; and

Action brought on 22 November 2002 by the Com-
mission of the European Communities against the United
Kingdom of Great Britain and Northern Ireland

(Case C-423/02)

(2003/C 19/32)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 22 November 2002 by the
Commission of the European Communities, represented by
X. Lewis and M. Konstantinidis, 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 fully with
Council Directive 1999/31/EC of 26 April 1999 on the
landfill of waste (1) or, in any event, by failing to notify
such provisions to the Commission, the United Kingdom
of Great Britain and Northern Ireland has failed to fulfil
fully its obligations under Article 18 of that Directive;

(iii) Article 9(5) BR may be applied at the discretion of the
Council and as such is a non-mandatory rule of law.

2)

order the United Kingdom of Great Britain and Northern
Ireland to pay the costs.