Judgment of the Court (Sixth Chamber) of 10 April 2003 in Case C-65/01: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 89/655/EEC — Incomplete transposition)
Date: 2003-06-07
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, occupational health, occupational safety

7.6.2003

EN

Official Journal of the European Union

C 135/5

a preliminary ruling in the proceedings pending before that
court between Linde AG (C-53/01), Winward Industries Inc.
(C-54/01), and and Rado Uhren AG (C-55/01), on the
interpretation of Article 3(1)(b), (c) and (e) of First Council
Directive 89/104/EEC of 21 December 1988 to approximate
the laws of the Member States relating to trade marks (OJ
1989 L 40, p. 1), the Court, composed of: G.C. Rodríguez
J.-P. Puissochet, R. Schintgen and
Iglesias,
C.W.A. Timmermans, Presidents of Chamber, C. Gulmann,
D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rappor-
teur), J.N. Cunha Rodrigues, and A. Rosas, Judges; D. Ruiz-
Jarabo Colomer, Advocate General; H. von Holstein, Deputy
Registrar, has given a judgment on 8 April 2003, in which it
has ruled:

President,

1. When assessing the distinctiveness of a three-dimensional shape
of product trade mark for the purposes of Article 3(1)(b) of
First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks, a stricter test than that used for other types of trade
mark must not be applied.

2.

Independently of Article 3(1)(e) of First Directive 89/104,
Article 3(1)(c) also has significance for three-dimensional shape
of product trade marks.

When examining the ground for
refusing registration in
Article 3(1)(c) of First Directive 89/104 in a concrete case,
regard must be had to the public interest underlying that
provision, which is that all three-dimensional shape of product
trade marks which consist exclusively of signs or indications
which may serve to designate the characteristics of the goods or
service within the meaning of that provision should be freely
available to all and, subject always to Article 3(3) of the
Directive, cannot be registered.

( 1) OJ C 150 of 19.05.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 10 April 2003

in Case C-65/01: Commission of the European Communi-
ties v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
89/655/EEC — Incomplete transposition)

(2003/C 135/07)

(Language of the case: Italian)

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

In Case C-65/01, Commission of the European Communities
(Agent: A. Aresu) v Italian Republic (Agent: U. Leanza, assisted
by D. Del Gaizo, avvocato dello Stato): Application for a
declaration that, by failing to adopt the laws and regulations
necessary to transpose into national law the minimum manda-
tory requirements and, therefore, by failing to guarantee the
protection of workers, the Italian Republic has failed to fulfil
its obligations under Article 4(1) of, and the sixth sentence of
paragraph 2.1, the second sentence of paragraph 2.2, the
second to fourth sentences of paragraph 2.3, and the second
to fifth indents of the second sentence of paragraph 2.8 of
Annex I to, Council Directive 89/655/EEC of 30 November
1989 concerning the minimum safety and health requirements
for the use of work equipment by workers at work (second
individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC) (OJ 1989 L 393, p. 13), as amended by
Council Directive 95/63/EC of 5 December 1995 (OJ 1995
L 335, p. 28), the Court (Sixth Chamber), composed of:
J.-P. Puissochet, President of
the Chamber, C. Gulmann,
F. Macken, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues,
Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
given a judgment on 10 April 2003, in which it:

1. Declares that, by failing to adopt the laws and regulations
necessary to transpose into national law the minimum manda-
tory requirements, the Italian Republic has failed to fulfil its
obligations under Article 4(1) of and the sixth sentence of
paragraph 2.1, the second sentence of paragraph 2.2, the third
and fourth sentences of paragraph 2.3, and the second to fifth
indents of the second sentence of paragraph 2.8 of Annex I
to Council Directive 89/655/EEC of 30 November 1989
concerning the minimum safety and health requirements for the

C 135/6

EN

Official Journal of the European Union

7.6.2003

use of work equipment by workers at work (second individual
Directive within the meaning of Article 16(1) of Directive 89/
391/EEC), as amended by Council Directive 95/63/EC of
5 December 1995;

2. Orders the Italian Republic to pay the costs.

( 1) OJ C 118 of 21.04.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 April 2003

the light of all the factual and legal evidence available to it,
whether or not
the results of analyses of samples of a
manufacturer’s products are to be admitted as evidence that the
manufacturer has infringed a Member State’s national rules on
foodstuffs where the manufacturer has been unable to exercise
his right to a second opinion under the second subparagraph of
Article 7(1) of Directive 89/397. In that regard, the national
court must verify that the national rules on the taking of
evidence applicable to such an action are not less favourable
than those governing similar domestic actions (the principle of
equivalence) and that they do not render practically impossible
rights conferred by
the exercise of
or excessively difficult
Community law (the principle of effectiveness). In addition, the
national court must consider whether such evidence must be
excluded in order to avoid measures incompatible with com-
pliance with fundamental rights, in particular the right to a fair
hearing before a tribunal as laid down in Article 6(1) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms.

in Case C-276/01 (Reference for a preliminary ruling from
the Amtsgericht Schleswig): Joachim Steffensen (1)

(1) OJ C 275 of 29.9.2001.

(Directive 89/397/EEC — Official control of foodstuffs —
Second subparagraph of Article 7(1) — Analysis of samples
— Right to a second opinion — Direct effect — Admissibility
of the results of analyses as evidence in the event of an
infringement of the right to a second opinion)

(2003/C 135/08)

(Language of the case: German)

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

In Case C-276/01: Reference to the Court under Article 234
EC by the Amtsgericht Schleswig (Germany) for a preliminary
ruling in the proceedings pending before that court against
Joachim Steffensen, on the interpretation of
the second
subparagraph of Article 7(1) of Council Directive 89/397/EEC
of 14 June 1989 on the official control of foodstuffs (OJ 1989
L 186, p. 23), the Court (Fifth Chamber), composed of:
M. Wathelet, President of the Chamber, C.W.A. Timmermans
(Rapporteur), P. Jann, S. von Bahr and A. Rosas, Judges; C. Stix-
Hackl, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 10 April
2003, in which it has ruled:

1.

The second subparagraph of Article 7(1) of Council Directive
89/397/EEC of 14 June 1989 on the official control of
foodstuffs is to be construed as meaning that a manufacturer
may rely on a right to a second opinion based on that article
against the competent authorities of a Member State where
those authorities claim that his products fail to meet the
standard required by the national rules on foodstuffs on the
basis of an analysis of samples of those products taken from
retail outlets.

2.

It is for the national court before which an action such as that
at issue in the main proceedings has been brought to assess, in

JUDGMENT OF THE COURT

(First Chamber)

of 10 April 2003

in Case C-114/02: Commission of the European Communi-
ties v French Republic (1)

(Failure of a Member State to fulfil its obligations —
Directive 98/8/EC — Failure to transpose within the pre-
scribed period)

(2003/C 135/09)

(Language of the case: French)

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

In Case C-114/02, Commission of the European Communities
(Agent: L. Ström) v French Republic (Agents: G. de Bergues
and E. Puisais): Application for a declaration that, by failing to
adopt all the laws, regulations and administrative measures
necessary to comply with Directive 98/8/EC of the European
Parliament and of the Council of 16 February 1998 concerning
the placing of biocidal products on the market (OJ 1998
its
L 123, p. 1), the French Republic has failed to fulfil