Case C-228/03: Reference for a preliminary ruling by the Korkein oikeus by order of that Court of 23 May 2003 in the case of The Gillette Company and Gillette Group Finland Oy against LA-Laboratories Ltd Oy
Date: 2003-07-19
Institutions: Court of Justice
Subjects: EU trade mark, approximation of laws, interpretation of the law, spare part, trade-mark law

C 171/18

EN

Official Journal of the European Union

19.7.2003

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

Directive 98/79/EC establishes harmonised rules applicable to
the characteristics and authorisation procedures for in vitro
diagnostic medical devices in order to ensure their free
movement under the best safety conditions. Article 22 of the
directive provides that Member States are to adopt the laws,
regulations and administrative provisions necessary to comply
with that directive not later than 7 December 1999 and that
they are immediately to inform the Commission thereof. The
Commission received from the French authorities Order
No 2001-198 of 1 March 2001 which contains the legal
provisions necessary to transpose the directive. However, it is
clear from various letters from those authorities that the
implementing decrees have still to be adopted and published
before certain provisions of the order become applicable. Since
the Commission has not received any information from which
it could conclude that those decrees have been adopted, it
considers that the French Republic has not yet taken all the
measures necessary to transpose the directive or, in any event,
has not communicated those measures to the Commission.

( 1) OJ L 331, 7.12.1998, p. 1.

Reference for a preliminary ruling by the Rechtbank
Amsterdam by judgment of that Court of 21 May 2003 in
the case of A.J. Van Pommeren-Bourgondiën against Raad
van Bestuur van de Sociale Verzekeringsbank

(Case C-227/03)

(2003/C 171/25)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Rechtbank Amster-
dam (District Court, Amsterdam) of 21 May 2003, received at
the Court Registry on 26 May 2003, for a preliminary ruling
in the case of A.J. Van Pommeren-Bourgondiën against Raad
van Bestuur van de Sociale Verzekeringsbank on the following
questions:

1. Does Article 13(2)(f) of Regulation No 1408/71 (1) pre-
clude legislation of a Member State under which a person
who has ceased all occupational activity in its territory
remains insured under that legislation only if he continues
to reside there, whilst that person remains insured under
the legislation of that Member State in respect of certain
other branches of social security irrespective of his place
of residence?

2. Does the fact that under the legislation of that Member
State the person has the option of being voluntarily
insured in respect of a number of branches of social
security, without such voluntary insurance being con-
ditional on his remaining resident in that Member State,
have any bearing on the answer to Question 1?

If the answer to the Question 1 is in the negative, the following
question is referred in the alternative:

3.

In a situation such as that described above, is Article 39
EC to be interpreted as meaning that the replacement
of compulsory insurance with voluntary insurance is
incompatible therewith where the reason for the termin-
ation of the compulsory insurance is the introduction of
a residence requirement?

(1) OJ 1971, L 149, p. 2.

Reference for a preliminary ruling by the Korkein oikeus
by order of that Court of 23 May 2003 in the case of The
Gillette Company and Gillette Group Finland Oy against
LA-Laboratories Ltd Oy

(Case C-228/03)

(2003/C 171/26)

Justice of the
Reference has been made to the Court of
European Communities by order of
the Korkein oikeus
(Supreme Court) of 23 May 2003, received at the Court
Registry on 26 May 2003, for a preliminary ruling in the case
of The Gillette Company and Gillette Group Finland Oy against
LA-Laboratories Ltd Oy on the following questions:

When applying Article 6(1)(c) of the First Council Directive
89/104/EEC (1) to approximate the laws of the Member States
relating to trade marks:

(1) What are the criteria

(a) on the basis of which the question of regarding a
product as a spare part or accessory is to be decided,
and

(b) on the basis of which those products to be regarded
as other than spare parts and accessories which can
also fall within the scope of the said subparagraph
are to be determined?

(2)

Is the permissibility of the use of a third party’s trade
mark to be assessed differently, depending on whether
the product is like a spare part or accessory or whether it
is a product which can fall within the scope of the said
subparagraph on another basis?

19.7.2003

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Official Journal of the European Union

C 171/19

(3) How should the requirement

that the use must be
‘necessary’ to indicate the intended purpose of a product
be interpreted? Can the criterion of necessity be satisfied
even though it would in itself be possible to state the
intended purpose without an express reference to the
third party’s trade mark, by merely mentioning only for
instance the technical principle of functioning of the
product? What significance does it have in that case that
the statement may be more difficult for consumers to
understand if there is no express reference to the third
party’s trade mark?

(4) What factors should be taken into account when assessing
accordance with honest commercial practice? Does the
mentioning of a third party’s trade mark in connection
with the marketing of one’s own product constitute a
reference to the fact that the marketer’s own product
corresponds, in quality and technically or as regards its
other properties, to the product designated by the third
party’s trade mark?

(5) Does it affect the permissibility of the use of a third
party’s trade mark that the economic operator who refers
to the third party’s trade mark also markets, in addition
to a spare part or accessory, a product of his own which
that spare part or accessory is intended to be used with?

( 1) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ L 40 of 11.2.1989, p. 1).

Action brought on 5 June 2003 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-241/03)

(2003/C 171/28)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
5 June 2003 by the Commission of the European Communi-
ties, represented by G. Zavvos and W. Wils, as Agents.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2000/26/EC of the European Parliament and of
the Council of 16 May 2000 on the approximation of the
laws of the Members States relating to insurance against
civil liability in respect of the use of motor vehicles and
amending Council Directives 73/239/EEC and 88/357/
EEC (Fourth motor insurance Directive) (1), or in any
event by failing to inform the Commission thereof, the
Kingdom of
its
obligations under that directive;

the Netherlands has failed to fulfil

— order the Kingdom of the Netherlands to pay the costs.

Reference for a preliminary ruling by the Juzgado de
1a Instancia no 35 (Barcelona) by order of that Court of
5 May 2003 in the case of QDQ Media S.A. against
A. Omedas Lecha

Pleas in law and main arguments

The time limit for compliance with the directive expired on
20 July 2002.

(Case C-235/03)

(2003/C 171/27)

(1) OJ 2000 L 181, p. 65.

Reference has been made to the Court of Justice of the
European Communities by order of the Juzgado de 1a Instancia
no 35 (Court of First Instance No 35) (Barcelona) of 5 May
2003, received at the Court Registry on 2 June 2003, for a
preliminary ruling in the case of QDQ Media S.A. against
A. Omedas Lecha on the following question:

Within the context of the protection accorded a creditor under
Directive 2000/35/EC (1) of the European Parliament and of
the Council of 29 June 2000 on combating late payment in
commercial transaction, is it possible to regard as a debt-
related recovery cost the expenses arising from the use of legal
representation and assistance in the enforcement proceedings
brought for the purpose of recovering that debt.

( 1) OJ L 200 of 8.8.2000, p. 35.

Action brought on 6 June 2003 by the Commission of the
European Communities against the French Republic

(Case C-243/03)

(2003/C 171/29)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 June 2003
by the Commission of the European Communities, represented
by E. Traversa, acting as Agent, with an address for service in
Luxembourg.