Case C-448/02: Action brought on 11 December 2002 by the Hellenic Republic against the Commission of the European Communities
Date: 2003-02-08
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, European Commission, Greece, action for annulment (EU), agricultural expenditure, budgetary control, financial year

8.2.2003

EN

Official Journal of the European Union

C 31/13

The Appellant claims that the Court should:

1.

2.

annul the judgment of the Court of First Instance of
9 October 2002 in Case T-36/01 Glaverbel v. Office for
Harmonization (glass pattern) in so far as it found that
the First Board of Appeal of the Office for Harmonization
in the Internal Market (Trademarks and Designs) did not
infringe Article 7 (1)(b) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community
trademark (2) in adopting its decision of 30 November
2000 (Case R 137/2000-1).

annul the decision of
the First Board of Appeal of
the Office of Harmonization in the Internal Market
(Trademarks and Designs) of 30 November 2000 (Case R
137/2000-1)
in so far as it refused the application
No. 811 281 for registration of a design applied to a
surface of the goods (glass pattern) as a trademark on the
basis of Article 7 (1)(b) of Regulation No 40/94;

3.

orders the Office for Harmonization in the Internal
Market (Trademarks and Designs) to pay the costs both
at first instance and on appeal.

Pleas in law and main arguments

By annulling the contested decision for the infringement of a
right to a hearing with respect to the arguments based on
Article 7 (3) of Regulation No 40/94 and in doing so on that
ground alone, the contested judgment allowed that part of the
decision relating to the registrability of
the Community
trademark application in respect of Article 7 (1)(b) of the
Regulation to stand.

The Appellant maintains that in order for the OHIM to
take the necessary measures to comply with the contested
judgment, the OHIM could therefore simply confine itself to
considering the arguments submitted by the Appellant in
respect of Article 7 (3) without altering its interpretation of
Article 7 (1)(b) of the Regulation. Accordingly the Appellant
submits that it has an interest in appealing the contested
judgment.

findings that the relevant consumer is not used to regarding
designs applied to the surface of glass sheets as an indication
of the trade origin of the goods, and that the design is not
immediately recognisable as an indication of the trade origin
of the goods but as a functional component.

(1) OJ C 118, 21.04.2001, p. 41.
(2) OJ L 011, 14.01.1994, p. 1.

Action brought on 11 December 2002 by the Hellenic
Republic against the Commission of the European Com-
munities

(Case C-448/02)

(2003/C 31/19)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 11 December 2002 by the Hellenic Republic,
represented by Ioannis Khalkias and Georgios Kanellopoulos,
Members of the State Legal Service, with an address for service
in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix.

The applicant claims that the Court should:

— annul or, in the alternative, amend Commission Decision
C(2002) 3771 of 14 October 2002 amending Decision
1999/187/EC (1), relating to the exclusion from Com-
munity funding of certain expenditure incurred by the
Member States within the framework of the Guarantee
Section of the EAGGF (2), so far as concerns financial
corrections to the detriment of the Hellenic Republic in
the arable crops sector for the financial year 1995.

The Appellant submits that the CFI was wrong in finding that
the sign in question is devoid of any distinctive character for
the purposes of Article 7 (1)(b) of Regulation No 40/94 and
finding is based on a wrong assessment and
that
interpretation of the aforementioned article. The Appellant
also maintains that the Board of Appeal was not correct in its

that

Grounds for annulment and main arguments

— The differences are not actual;

incorrect interpretation
and application of Article 5(2)(c) of Regulation (EEC)
No 729/70.

C 31/14

EN

Official Journal of the European Union

8.2.2003

— Lump-sum financial corrections have already been
imposed in respect of the crop years 1994, 1995 and
1996 for the same reason; lack of a statement of reasons,
or otherwise an insufficient statement of reasons, because
of an error as to the facts, of misappraisal of the facts and
of a failure to take account of relevant matters.

Pleas in law and main arguments

The time-limit for transposition expired on 31 July 2001.

— In the alternative: the Commission lacked competence
ratione temporis; incorrect interpretation and application
of Article 5(2)(c) of Regulation No 729/70 and
Article 8(1) of Regulation No 1663/95.

(1) OJ 1999 L 201, p. 77.

( 1) OJ No L 61, 10.3.1999, p. 37.
( 2) OJ No L 280, 18.10.2002, p. 88.

Reference for a preliminary ruling by the Tribunale Penale
di Terni (Italy) by order of that court of 20 November
2002 in criminal proceedings against Antonio Niselli

Action brought on 11 December 2002 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-449/02)

(2003/C 31/20)

(Case C-457/02)

(2003/C 31/21)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 11 December
2002 by the Commission of the European Communities,
represented by Maria Patakia, Legal Adviser, and Isabel Martí-
nez del Peral, of its Legal Service, acting as Agents.

The applicant claims that the Court should :

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 1999/42/EC (1) 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 activities covered by the Directives on liberal-
isation and transitional measures and supplementing the
general systems for the recognition of qualifications or,
in any event, by failing to communicate them, the
Kingdom of Spain has failed to fulfil its obligations under
that directive;

— Order the Kingdom of Spain to pay the costs.

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale Penale di
Terni (Italy) of 20 November 2002, which was received at the
Court Registry on 18 December 2002,
for a preliminary
ruling in criminal proceedings against Antonio Niselli on the
following questions to determine whether the definition of
‘waste’ introduced by Directive 75/442/EEC (1), as amended by
Directive 91/156/EEC (2), must continue to be understood and
interpreted for the time being in Italy in the light of the case-
law of the Court of Justice cited above or in the light of
Article 14 of Legislative Decree No 138 of 8 July 2002,
converted into Law No 178 of 8 August 2002:

Must the concept of waste be strictly subject to the following
conditions: that the words ‘discards’, ‘intends to discard’ or ‘is
required to discard’,
introduced into Italian law by
Article 6(1)(a) of Legislative Decree No 22 of 5 February 1997,
are to be interpreted as follows:

(a)

‘discards’: any conduct whereby, directly or indirectly,
substances, materials or goods are disposed of or subject-
ed to disposal or recycling, in accordance with Annexes B
and C to Legislative Decree No 22;