Judgment of the Court (Fifth Chamber) of 10 April 2003 in Case C-305/00 (Reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main): Christian Schulin v Saatgut-Treuhandverwaltungsgesellschaft mbH (Plant varieties — System of protection — Article 14(3) of Regulation (EC) No 2100/94 and Article 8 of Regulation (EC) No 1768/95 — Use by farmers of the product of the harvest — Obligation to provide information to the holder of the Community right)
Date: 2003-06-07
Institutions: Court of Justice
Subjects: administrative procedure, exchange of information, industrial property, interpretation of the law, patent law, plant propagation

C 135/2

EN

Official Journal of the European Union

7.6.2003

8. Dismisses the remainder of the application;

9. Orders the parties to bear their own costs.

( 1) OJ C 246 of 28.08.1999.

JUDGMENT OF THE COURT

of 8 April 2003

in Case C-244/00 (Reference for a preliminary ruling from
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
Orth (1)

(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the
market in the EEA)

(2003/C 135/02)

(Language of the case: German)

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

In Case C-244/00: Reference to the Court under Article 177
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and
of Article 7(2) 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), as amended
by the Agreement on the European Economic Area of
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 8 April 2003, in which it has ruled:

A rule of evidence according to which exhaustion of the trade mark
right constitutes a plea in defence for a third party against whom the
trade mark proprietor brings an action, so that the existence of the
conditions for such exhaustion must, as a rule, be proved by the third
party who relies on it, is consistent with Community law and, in
particular, with Articles 5 and 7 of First Council Directive 89/104/
EEC of 21 December 1988 to approximate the laws of the Member

States relating to trade marks, as amended by the Agreement on the
European Economic Area of 2 May 1992. However, the requirements
deriving from the protection of the free movement of goods enshrined,
inter alia, in Articles 28 EC and 30 EC may mean that this rule of
evidence needs to be qualified. Accordingly, where a third party
succeeds in establishing that there is a real risk of partitioning of
national markets if he himself bears that burden of proof, particularly
where the trade mark proprietor markets his products in the European
Economic Area using an exclusive distribution system, it is for the
proprietor of the trade mark to establish that the products were
initially placed on the market outside the European Economic Area
by him or with his consent. If such evidence is adduced, it is for the
third party to prove the consent of the trade mark proprietor to
subsequent marketing of the products in the European Economic
Area.

(1) OJ C 247 of 26.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 April 2003

in Case C-305/00 (Reference for a preliminary ruling
from the Oberlandesgericht Frankfurt am Main): Christian
Saatgut-Treuhandverwaltungsgesellschaft
Schulin

v

mbH (1)

(Plant varieties — System of protection — Article 14(3) of
Regulation (EC) No 2100/94 and Article 8 of Regulation
(EC) No 1768/95 — Use by farmers of the product of the
harvest — Obligation to provide information to the holder
of the Community right)

(2003/C 135/03)

(Language of the case: German)

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

In Case C-305/00: Reference to the Court under Article 234
EC by the Oberlandesgericht Frankfurt am Main (Germany) for
a preliminary ruling in the proceedings pending before that
court between Christian Schulin and Saatgut-Treuhandverwal-
tungsgesellschaft mbH, on the interpretation of the sixth
indent of Article 14(3) of Council Regulation (EC) No 2100/
94 of 27 July 1994 on Community plant variety rights (OJ
1994 L 227, p. 1), and Article 8 of Commission Regulation
(EC) No 1768/95 of 24 July 1995 implementing rules on
the agricultural exemption provided for in Article 14(3) of
Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
(Fifth Chamber), composed of: M. Wathelet, President of the
Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr

7.6.2003

EN

Official Journal of the European Union

C 135/3

(Rapporteur) and A. Rosas, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 10 April 2003, in which it
has ruled:

The provisions of the sixth indent of Article 14(3) of Council
Regulation (EC) No 2100/94, of 27 July 1994, on Community
plant variety rights in conjunction with Article 8 of Commission
Regulation (EC) No 1768/95 of 24 July 1995 implementing rules
on the agricultural exemption provided for in Article 14(3) of
Regulation No 2100/94 cannot be construed as meaning that the
holder of a Community plant variety right can require a farmer to
provide the information specified in those provisions where there is no
indication that the farmer has used or will use, for propagating
purposes in the field, on his own holding, the product of the harvest
obtained by planting, on his own holding, propagating material of a
variety other than a hybrid or synthetic variety which is covered by
that right and belongs to one of the agricultural plant species listed
in Article 14(2) of Regulation No 2100/94.

the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters by
the Landesarbeitsgericht München (Germany) for a preliminary
ruling in the proceedings pending before that court between
Giulia Pugliese and Finmeccanica SpA, Alenia Aerospazio
Division, on the interpretation of Article 5(1) of the abovemen-
tioned Convention of 27 September 1968 (OJ 1978 L 304,
p. 36), as amended by the Convention of 9 October 1978 on
the Accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ
1978 L 304, p. 1 and — amended version — p. 77), by the
Convention of 25 October 1982 on the Accession of the
Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention
of 26 May 1989 on the Accession of the Kingdom of Spain
and the Portuguese Republic (OJ 1989 L 285, p. 1), the Court,
composed of: D.A.O. Edward acting as President of the Fifth
Chamber, A. La Pergola, P. Jann (Rapporteur), S. von Bahr and
A. Rosas, Judges; F.G. Jacobs, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 10 April 2003, in which it has ruled:

( 1) OJ C 302 of 21.10.2000.

1. Article 5(1) of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, as amended by the Convention of 9 Octo-
ber 1978 on the Accession of the Kingdom of Denmark,
Ireland and the United Kingdom of Great Britain and Northern
Ireland, by the Convention of 25 October 1982 on the
Accession of the Hellenic Republic and by the Convention of
26 May 1989 on the Accession of the Kingdom of Spain and
the Portuguese Republic, must be interpreted as meaning that,
in a dispute between an employee and a first employer, the place
where the employee performs his obligations to a second
employer can be regarded as the place where he habitually
carries out his work when the first employer, with respect to
whom the employee’s contractual obligations are suspended,
has, at the time of the conclusion of the second contract of
employment, an interest in the performance of the service by the
employee to the second employer in a place decided on by the
latter. The existence of such an interest must be determined on
a comprehensive basis,
the
circumstances of the case.

taking into consideration all

2. Article 5(1) of the Brussels Convention must be interpreted as
meaning that, in matters relating to contracts of employment,
the place where the employee carries out his work is the only
place of performance of an obligation which can be taken into
consideration in order to determine which court has jurisdiction.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 April 2003

in Case C-437/00 (Reference for a preliminary ruling from
the Landesarbeitsgericht München): Giulia Pugliese v
Finmeccanica SpA, Alenia Aerospazio Division (1)

(Brussels Convention — Article 5(1) — Court for the place
of performance of the contractual obligation — Contract of
employment — Place where the employee habitually carries
out his work — First contract fixing the place of performance
of the work in one Contracting State — Second contract
concluded with reference to the first contract and under
which the employee carries out his work in another Con-
tracting State — First contract suspended during the per-
formance of the second)

(2003/C 135/04)

(Language of the case: German)

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

(1) OJ C 61 of 24.2.2001.

In Case C-437/00: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of