Case C-467/02: Reference for a preliminary ruling by the Verwaltungsgericht Stuttgart by order of that Court of 19 December 2002 in the administrative-law proceedings between Inan Cetinkaya and Land Baden-Württemberg
Date: 2003-03-22
Institutions: Court of Justice
Subjects: imprisonment, interpretation of the law, job access, labour market, narcotic, residence permit, unemployment

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Official Journal of the European Union

22.3.2003

(Federal Social Court) of 30 October 2002, received at the
Court Registry on 13 December 2002, for a preliminary
ruling in the case of Karin Bautz against AOK (Allgemeine
Ortskrankenkasse — General Local Health Insurance Fund)
Baden-Württemberg on the following questions:

1.

2.

Is it compatible with the provisions of Articles 49 and 50
EC for a Member State which has organised its sickness
insurance system in accordance with the principle of
benefits in kind, and which provides outpatient medical
care through authorised medical practitioners, to permit
the reimbursement of the cost of consulting unauthorised
medical practitioners — also where treatment is provided
in another Member State — only if treatment correspond-
ing to the generally accepted state of medical knowledge
is not available under the system of benefits in kind?

If this is deemed to be an inadmissible impediment to the
freedom to provide services, do the aforementioned
provisions of the EC Treaty permit German law to make
the reimbursement of the cost of privately obtained
medical services conditional — except in emergencies —
on a prior application being made for a decision by the
sickness insurance fund as to entitlement
to extra-
contractual treatment?

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 6 November 2002 in the
case of Finanzamt Herne-West against Savvas Akritidis

(Case C-462/02)

(2003/C 70/04)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 6 November 2002, received at the
Court Registry on 23 December 2002, for a preliminary ruling
in the case of Finanzamt Herne-West against Savvas Akritidis
on the following questions:

1. Does Article 13B(f) of Directive 77/388/EEC (1) prohibit
a Member State from making the organisation of a card
game subject to value added tax solely if the organisation
of a card game by a licensed public casino is exempt, or
must card games organised outside casinos also be
comparable for that purpose in essential respects, for
example as regards the game rules, the maximum stake
and the maximum winnings, with card games in the
casinos?

2.

Is the installer of the machine permitted to rely on the
exemption laid down in Article 13B(f) of Directive 77/
388/EEC?

(1) OJ L 145 of 13.06.1977, p. 1.

Reference for a preliminary ruling by the Verwaltungs-
gericht Stuttgart by order of that Court of 19 December
2002 in the administrative-law proceedings between Inan
Cetinkaya and Land Baden-Württemberg

(Case C-467/02)

(2003/C 70/05)

Reference has been made to the Court of
Justice of the
European Communities by order of the Verwaltungsgericht
(Administrative Court) of 19 December 2002,
Stuttgart
received at the Court Registry on 27 December 2002, for
a preliminary ruling in the administrative-law proceedings
between Inan Cetinkaya and Land Baden-Württemberg on the
following questions:

1. Does a child born in Germany to a Turkish worker who
belongs to the regular labour force fall within the scope
of Article 7(1) of Decision No 1/80 of the EEC-Turkey
Association Council of 19 September 1980 on the
development of the Association (‘Decision No 1/80’)
where from his birth to at least the time he attained the
age of majority his residence was permitted initially solely
for the reason of family unity or, where his residence
permit was temporary, was not terminated solely for that
reason?

2.

Is Article 14 of Decision No 1/80 the only basis upon
which the right of a family member to access to the
employment market and to an extension of residence
under the second indent of Article 7(1) may be limited?

3. Does the imposition of three years’

juvenile sentence
constitute the definitive removal of the person concerned
from the labour force such that he loses his rights under
the second indent of Article 7(1) even if there is a real
possibility that only part of the sentence will require to
be served, albeit that if released early on licence the
person will be required to submit to treatment for drug
abuse and during the period of that treatment will not be
available for employment on the market?

4. Where it results from a short period of imprisonment
which is not suspended for probation, does the loss of a
job or, where the person concerned is unemployed, the
impossibility of applying for a job constitute voluntary
unemployment within the meaning of the second sen-
tence of Article 6(2) of Decision No 1/80 and therefore
not prevent the loss of the rights conferred by Article 6(1)
and Article 7(1) of Decision No 1/80?

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5. Does this apply also where it may be assumed that the
person will be released after an insignificant, reasonable
time, but must then submit to treatment for drug abuse
and will not be able to take up employment until he has
completed additional school education?

6.

Is Article 14(1) of Decision No 1/80 to be interpreted as
meaning that the court requires to take into account a
change in circumstances which occurs after the most
recent administrative decision and which is favourable to
the person concerned such that it would preclude the
application of any of the limitations in Article 14 of
Decision No 1/80?

Pleas in law and main arguments

— Infringement of Article 8(1)(b) of Regulation No 40/
94; the trade mark applied for,
‘MATRATZEN markt
CONCORD’, which consists of three words and a figurat-
ive element, and the opposing earlier trade mark, ‘Matrat-
zen’, are not similar, but completely different. The Court
of First Instance did not base its assessment on the overall
impression created by the marks and thus failed to have
regard to the principles established in the judgment of
the Court of Justice in Case C-251/95 (SABEL). The
finding that the word ‘MATRATZEN’ alone is the domi-
nant feature of the trade mark applied for is contrary to
the rules of logic and to experience.

— Breach of the principle of the free movement of goods
(Articles 28 and 30 EC); the opposition based on the
earlier mark is an abuse of a formal legal position. This
was not sufficiently assessed by the Court of First Instance.

Appeal brought on 7 January 2003 by Matratzen Concord
formerly Matratzen Concord AG, against the
GmbH,
judgment delivered on 23 October 2002 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Case T-6/01 between Matratzen Concord
GmbH, formerly Matratzen Concord AG, and the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs)

(1) OJ 2003 C 19.

(Case C-3/03 P)

(2003/C 70/06)

An appeal against the judgment delivered on 23 October 2002
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-6/01 between Matratzen
Concord GmbH, formerly Matratzen Concord AG, and the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) was brought before the Court of Justice of the
European Communities on 7 January 2003 by Matratzen
Concord GmbH,
represented by Dr Wolf-W. Wodrich,
Rechtsanwalt, Huyssenallee 58-64, D-45128 Essen, with an
address for service in Luxembourg, assisted by Patentanwälte
Zenz, Helber, Hosbach & Partner, Huyssenallee 58-64, D-
45128 Essen.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
the European Communities of 23 October 2002 in Case
T-6/01 (1),

— reject the opposition of the other party to the proceedings
before the Board of Appeal of 21 April 1998 (OHIM ref.:
B 32 500),

— order OHIM and the other party to the proceedings
before the Board of Appeal to pay the costs of the
proceedings before the Opposition Division and before
the Board of Appeal of OHIM, as well as the costs of the
proceedings on the action and on this appeal.

Appeal brought on 13 January 2003 by the Commission
of the European Communities against the judgment deliv-
ered on 25 October 2002 by the First Chamber of the
Court of First Instance of the European Communities in
case T-5/02 between Tetra Laval BV and the Commission
of the European Communities

(Case C-12/03 P)

(2003/C 70/07)

An appeal against the judgment delivered on 25 October 2002
by the First Chamber of the Court of First Instance of the
European Communities in case T-5/02 (1) between Tetra Laval
BV and the Commission of
the European Communities,
was brought before the Court of Justice of the European
Communities on 13 January 2003 by the Commission of the
European Communities, represented by Michel Petite, Anthony
Whelan and Per Hellström, acting as agents, with an address
for service in Luxembourg.

The Appellant claims that the Court should:

— annul the judgment of the Court of First Instance of
25 October 2002 in case T-5/02, Tetra Laval BV v
Commission;

— order Tetra Laval BV to pay the Commission’s costs.