Judgment of the Court (Fifth Chamber) of 8 May 2003 in Case C-111/01 (Reference for a preliminary ruling from the Oberster Gerichtshof): Gantner Electronic GmbH v Basch Exploitatie Maatschappĳ BV (Brussels Convention — Article 21 — Lis pendens — Set-off)
Date: 2003-06-21
Institutions: Court of Justice
Subjects: civil law, commercial law, interpretation of the law, jurisdiction

21.6.2003

EN

Official Journal of the European Union

C 146/7

p. 1), the Court, composed of: J.-P. Puissochet, President of the
Sixth Chamber, acting for the President, M. Wathelet and
C. W. A. Timmermans, Presidents of Chambers, C. Gulmann,
D. A. O. Edward, P.
Jann, F. Macken, S. von Bahr and
J. N. Cunha Rodrigues (Rapporteur), Judges; P. Léger, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-
trar, has given a judgment on 6 May 2003, in which it has
ruled:

1. A colour per se, not spatially delimited, may, in respect of
certain goods and services, have a distinctive character within
the meaning of Article 3(1)(b) and Article 3(3) of First Council
Directive 89/104/EEC of 21 December 1988 to approximate
the laws of the Member States relating to trade marks, provided
that, inter alia, it may be represented graphically in a way that
is clear, precise, self-contained, easily accessible,
intelligible,
durable and objective. The latter condition cannot be satisfied
merely by reproducing on paper the colour in question, but may
be satisfied by designating that colour using an internationally
recognised identification code.

2.

In assessing the potential distinctiveness of a given colour as a
trade mark, regard must be had to the general interest in not
unduly restricting the availability of colours for the other traders
who offer for sale goods or services of the same type as those in
respect of which registration is sought.

3. A colour per se may be found to possess distinctive character
within the meaning of Article 3(1)(b) and Article 3(3) of
Directive 89/104, provided that, as regards the perception of
the relevant public, the mark is capable of
identifying the
product or service for which registration is sought as originating
from a particular undertaking and distinguishing that product
or service from those of other undertakings.

4.

5.

The fact that registration as a trade mark of a colour per se is
sought for a large number of goods or services, or for a specific
product or service or for a specific group of goods or services, is
relevant,
together with all the other circumstances of the
particular case, to assessing both the distinctive character of the
colour in respect of which registration is sought, and whether
its registration would run counter to the general interest in not
unduly limiting the availability of colours for the other operators
who offer for sale goods or services of the same type as those in
respect of which registration is sought.

In assessing whether a trade mark has distinctive character
within the meaning of Article 3(1)(b) and Article 3(3) of
Directive 89/104, the competent authority for registering trade
marks must carry out an examination by reference to the actual
situation, taking account of all the circumstances of the case
and in particular any use which has been made of the mark.

( 1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 8 May 2003

in Case C-111/01 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Gantner Electronic GmbH v
Basch Exploitatie Maatschappij BV (1)

(Brussels Convention — Article 21 — Lis pendens — Set-
off)

(2003/C 146/11)

(Language of the case: German)

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

In Case C-111/01: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
by the Oberster Gerichtshof (Austria) for a preliminary ruling
in the proceedings pending before that court between Gantner
Electronic GmbH and Basch Exploitatie Maatschappij BV,
on the interpretation of Article 21 of the abovementioned
Convention of 27 September 1968 (OJ 1972 L 299, p. 32), 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 text — p. 77), by the Convention
of 25 October 1982 on the accession of the Hellenic Republic
(OJ 1982 L 388, p. 1), 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) and by the Convention of
29 November 1996 on the accession of the Republic of
Austria, the Republic of Finland and the Kingdom of Sweden
(OJ 1997 C 15, p. 1), the Court (Fifth Chamber), composed
of: M. Wathelet (Rapporteur), President of
the Chamber,
C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr,
Judges; P. Léger, Advocate General; M.-F. Contet, Principal
Administrator, for the Registrar, has given a judgment on
8 May 2003, in which it has ruled:

Article 21 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 October 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, by the Convention
of 26 May 1989 on the accession of the Kingdom of Spain and the
Portuguese Republic, and by the Convention of 29 November 1996
on the accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden, must be construed as meaning that, in
order to determine whether two claims brought between the same
parties before the courts of different Contracting States have the same

C 146/8

EN

Official Journal of the European Union

21.6.2003

subject-matter, account should be taken only of the claims of the
respective applicants, to the exclusion of the defence submissions
raised by a defendant.

( 1) OJ C 134 of 5.5.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 3 April 2003

JUDGMENT OF THE COURT

(Sixth Chamber)

of 8 May 2003

in Case C-113/01 (Reference for a preliminary ruling from
the Högsta förvaltningsdomstolen): Paranova Oy (1)

(Interpretation of Article 28 EC and Article 30 EC —
Medicinal products — Withdrawal of parallel import licence
in consequence of waiver of the marketing authorisation for
the medicinal product of reference)

in Case C-116/01 (Reference for a preliminary ruling from
the Raad van State): SITA EcoService Nederland BV,
formerly Verol Recycling Limburg BV v Minister van
en Milieu-
Volkshuisvesting, Ruimtelijke Ordening

beheer (1)

(Environment — Waste — Regulation (EEC) No 259/93 —
Directive 75/442/EEC — Treatment of waste in several
stages — Use of waste as fuel in the cement industry and
use of incineration residues as raw material
in cement
manufacture — Classification as a recovery operation or as
a disposal operation — Concept of the use of waste princi-
pally as a fuel or other means to generate energy)

(2003/C 146/13)

(Language of the case: Dutch)

(2003/C 146/12)

(Language of the case: Swedish)

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

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

In Case C-113/01: Reference to the Court under Article
234 EC by Högsta förvaltningsdomstolen (Finland)
for a
preliminary ruling in the proceedings pending before that
court brought by Paranova Oy on the interpretation of
Article 28 EC and Article 30 EC, the Court (Sixth Chamber),
composed of:
J.-P. Puissochet, President of the Chamber,
C. Gulmann (Rapporteur), F. Macken, N. Colneric and
J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate General;
H.A. Rühl, Principal Administrator, for the Registrar, has given
a judgment on 8 May 2003, in which it has ruled:

Article 28 EC and Article 30 EC preclude national legislation under
which the withdrawal, at the request of its holder, of a marketing
authorisation of reference of itself entails the withdrawal of the
parallel import licence granted for the medicinal product in question.
However, those provisions do not preclude restrictions on parallel
imports of the medicinal product in question where there is in fact a
risk to the health of humans as a result of the continued existence of
that medicinal product on the market of the importing Member State.

( 1) OJ C 150 of 19.5.2001.

In Case C-116/01: Reference to the Court under Article 234
EC by the Raad van State (Netherlands) for a preliminary ruling
in the proceedings pending before that court between SITA
EcoService Nederland BV, formerly Verol Recycling Limburg
BV and Minister van Volkshuisvesting, Ruimtelijke Ordening
en Milieubeheer, on the interpretation of Council Directive 75/
442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as
amended by Council Directive 91/156/EEC of 18 March 1991
(OJ 1991 L 78, p. 32) and Commission Decision 96/350/EC
of 24 May 1996 (OJ 1996 L 135, p. 32),
the Court
(Fifth Chamber), composed of: M. Wathelet, President of the
Chamber, C.W.A. Timmermans, A. La Pergola (Rapporteur),
P. Jann and A. Rosas, Judges; F.G. Jacobs, Advocate General;
M.-F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 3 April 2003, in which it has ruled:

1. Where a waste treatment process comprises several distinct
stages, it must be classified as a disposal operation or a recovery
operation within the meaning of Council Directive 75/442/
EEC of 15 July 1975 on waste, as amended by Council
Directive 91/156/EEC of 18 March 1991 and by Commission
Decision 96/350/EC of 24 May 1996,
for the purpose
of implementing Council Regulation (EEC) No 259/93 of
1 February 1993 on the supervision and control of shipments
of waste within, into and out of the European Community, as
amended by Council Regulation (EC) No 120/97 of 20 January
1997, taking into account only the first operation that the
waste is to undergo subsequent to shipment;