Order of the Court (Fourth Chamber) of 19 September 2002 in Case C-267/01 (reference for a preliminary ruling from the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien AG (Article 104(3) of the Rules of Procedure — Answer to a question admitting of no reasonable doubt — Article 3 of Regulation (EEC) No 3922/91 — Harmonisation of technical requirements and administrative procedures in the field of civil aviation — Paragraph 35 of Code 145 of the Joint Aviation Requirements)
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Civil Aviation Conference, administrative procedure, civil aviation, interpretation of the law, maintenance

25.1.2003

EN

Official Journal of the European Communities

C 19/9

JUDGMENT OF THE COURT

ORDER OF THE COURT

(Second Chamber)

of 28 November 2002

in Case C-414/01: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Failure by a Member State to fulfil its obligations — Failure
to implement Directive 97/7/EC)

(2003/C 19/16)

(Language of the case: Spanish)

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

In Case C-414/01, Commission of the European Communities
(Agent: I. Martínez del Peral) v Kingdom of Spain (Agent:
S. Ortiz Vaamonde): Application for a declaration that, by
the laws, regulations and administrative
failing to adopt
provisions necessary to comply with Directive 97/7/EC of the
European Parliament and of the Council of 20 May 1997 on
the protection of consumers in respect of distance contracts
(OJ 1997 L 144, p. 19), or, in any event, by failing to inform
the Commission of such provisions, the Kingdom of Spain has
its obligations under Article 15(1) of that
failed to fulfil
directive,
composed of:
the Chamber, V. Skouris and
R. Schintgen, President of
Judges; C. Stix-Hackl, Advocate
N. Colneric (Rapporteur),
General; R. Grass, Registrar, has given a judgment on 28 No-
vember 2002, in which it:

(Second Chamber),

the Court

1. Declares that by failing to adopt within the prescribed period
the laws, regulations and administrative provisions necessary to
comply with Directive 97/7/EC of the European Parliament
and of the Council of 20 May 1997 on the protection of
consumers in respect of distance contracts the Kingdom of Spain
has failed to fulfil its obligations under Article 15(1) of that
directive;

2. Orders the Kingdom of Spain to pay the costs.

( 1) OJ C 348 of 8.12.2001.

(Fourth Chamber)

of 19 September 2002

in Case C-267/01 (reference for a preliminary ruling from
the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien
AG (1)

(Article 104(3) of the Rules of Procedure — Answer to a
question admitting of no reasonable doubt — Article 3 of
Regulation (EEC) No 3922/91 — Harmonisation of techni-
cal requirements and administrative procedures in the field
of civil aviation — Paragraph 35 of Code 145 of the Joint
Aviation Requirements)

(2003/C 19/17)

(Language of the case: German)

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

In Case C-267/01: reference to the Court under Article 234
EC from the Oberste Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Jaroslav Nyvlt and Flughafen Wien AG — on the interpretation
of Paragraph 35 of Code 145 of the Joint Aviation Require-
ments, applicable to the Community by virtue of Article 3 of
Council Regulation (EEC) No 3922/91 of 16 December
1991 on the harmonisation of technical requirements and
administrative procedures in the field of civil aviation (OJ
1991 L 373, p. 4), as amended by Commission Regulation
(EEC) No 2176/96 of 13 November 1996 (OJ 1996 L 291,
p. 15) — the Court (Fourth Chamber), composed of: S. von
Bahr, President of the Chamber, D.A.O. Edward and A. La
Pergola (Rapporteur), Judges; A. Tizzano, Advocate General;
R. Grass, Registrar, has made an order on 19 September 2002,
in which it has ruled:

1. Where a worker authorised to certify aircraft fit for service is
placed by his employer at
the disposal of an approved
maintenance organisation, the obligations flowing from Para-
graph 35 of Code 145 of the Joint Aviation Requirements,
applicable in the Community by virtue of Article 3 of Directive
1999/42/EC of the European Parliament and of the Council
of 7 June 1999 establishing a mechanism for the recognition of
qualifications in respect of the professional Council Regulation
(EEC) No 3922/91 of 16 December 1991 on the harmon-
ization of technical requirements and administrative procedures
in the field of civil aviation, as amended by Commission
Regulation No 2176/96 of 13 November 1996, apply to
such an approved maintenance organisation.

2. Without prejudice to the fulfilment of the obligations placed
upon an approved maintenance organisation by Paragraph 35
of Code 145 of the abovementioned Joint Aviation Require-
ments, that provision does not preclude that, on the basis of
national provisions which are more extensive, the existence is
acknowledged of an obligation incumbent on an employer, not
being an approved maintenance organisation, to furnish to a

C 19/10

EN

Official Journal of the European Communities

25.1.2003

former employee, at his request, the documents relating to his
qualifications and professional experience gained during his
employment.

Chamber) of 26 October 2002 received at the Court Registry
on 31 October 2002, for a preliminary ruling in the criminal
proceedings against Silvio Berlusconi on the following ques-
tions:

( 1) OJ C 303, 27.10.2001.

1. Does Article 6 of Directive 68/151/EEC (1) on co-ordi-
nation of safeguards which, for the protection of the
interests of members and others, are required by Member
States of companies within the meaning of the second
paragraph of Article 58 of the Treaty, with a view
to making such safeguards equivalent throughout the
Community concern not only cases of failure to publish
the balance sheet and profit and loss account, but also
cases where those documents are published but their
contents are false, given that the harm to the interests of
members and third parties is clearly greater in the latter
case? Is the directive intended in that respect to lay down
a minimum level of protection at Community level
leaving it to the Member States to put in place means of
protection against the submitting of false balance sheets
or the publishing of false company accounts?

2. Do the criteria of effectiveness, proportionality and
dissuasiveness, which the penalties to be adopted by the
Member States under Council Directive 68/151 must
satisfy in order to be regarded as ‘appropriate’, refer to
the nature or type of penalty considered in the abstract,
or rather to its application in practice having regard to
the structural characteristics of the legal system within
which it takes effect?

3. Are the principles set out in Council Directive 78/660/
EEC (2) of 25 July 1978 based on Article 54(3)(g) of the
Treaty on the annual accounts of certain types of
companies, Council Directive 83/349/EEC (3) of 13 June
1983 based on Article 54(3)(g) of the Treaty on consoli-
dated accounts and Council Directive 90/605/EEC (4) of
8 November 1990 amending Directive 78/660/EEC on
annual accounts and Directive 83/349/EEC on consoli-
dated accounts as regards the scope of those directives,
upon which national measures relating to the drafting
and contents of annual accounts and annual reports, in
particular, of capital companies, must be based, to be
interpreted as precluding a Member State from setting
minimum thresholds below which inaccurate statements
in annual accounts and annual reports relating to com-
panies limited by shares, partnerships limited by shares
and limited liability companies are not punishable?

Reference for a preliminary ruling by the Bundespat-
entgericht by order of that Court of 26 June 2002 in the
complaint proceedings of Deutsche Telekom AG against
DKV Deutsche Krankenversicherung AG

(Case C-367/02)

(2003/C 19/18)

Reference has been made to the Court of Justice of the
European Communities by order of the (Federal Patent Court)
of 26 June 2002, received at the Court Registry on 14 October
2002, for a preliminary ruling in the complaint proceedings
of Deutsche Telekom AG against DKV Deutsche Krankenver-
sicherung AG on the following question:

Do the words ‘association with the earlier trade mark’ in the
second part of Article 4(1)(b) of the Trademarks Directive (1)
apply to the case where the earlier trade mark is attributed to
the later trade mark, the later trade mark having been formed
by adding a well known company logo, or an element in a
trade mark series belonging to the owner of the later trade
mark, to the earlier trade mark, which is a one-word logo
which is neither the undertaking’s logo nor an element in a
trade mark series and is of average distinctiveness?

( 1) 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 of 11.02.1989, p. 1).

Reference for a preliminary ruling by the Tribunale di
Milano, Prima Sezione penale by order of that court of
26 October 2002 in criminal proceedings against Silvio
Berlusconi

(Case C-387/02)

(2003/C 19/19)

(1) OJ, English Special Edition 1968 (I), p. 41.
(2) OJ 1978 L 222, p. 11.
(3) OJ 1983 L 193, p. 1.
(4) OJ 1990 L 317, p. 60.

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Prima Sezione penale (Milan District Court, First Criminal