Case C-403/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 22 July 2003 in the case of Egon Schempp against Finanzamt München V
Date: 2003-12-13
Institutions: Court of Justice
Subjects: Austria, Germany, divorced person, interpretation of the law, maintenance obligation

13.12.2003

EN

Official Journal of the European Union

C 304/11

Statements on Articles 3 and 12: With regard to the
interpretation of Articles 2 and 10, the Council and the
Commission are in agreement that there is nothing to
prevent individual Member States from laying down in
legislation rules regarding liability for
their national
intermediaries, since intermediary liability is not covered
by the Directive. There is further agreement that under
the Directive the Member States may determine rules on
the final mutual apportionment of liability among several
liable producers (see Article 3) and intermediaries; and

2. Article 13 of the Directive, which provides that:

‘This Directive shall not affect any rights which an injured
person may have according to the rules of the law of
contractual or non-contractual liability or a special liab-
ility system existing at the moment when this Directive is
notified’,

does the Directive preclude a Member State from laying down
legal rules on intermediary liability for defective products
where the intermediary is, as occurred in [Paragraph 3(1)] of
the Danish law on liability for defective products, defined as
any person who, in the course of his business, puts a product
into circulation without being deemed to be the producer
under the definition thereof in Article 3 of the Directive on
liability for defective products?

Q u e s t i o n 4

Does the Directive (Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning
liability for defective products) preclude a Member State from
laying down a legal rule relating to liability for defective
products, under which the intermediary — without himself
being the producer or treated as a producer under Article 3 of
the Directive — is responsible for:

— the producer’s liability for defective products under the

Directive,

— the producer’s fault based-liability established in case-law
in respect of liability for defective products resulting in
personal injury or damage to consumers’ property,

where the legal rule in question requires that:

(a)

(b)

the intermediary be defined as any person who, in the
course of his business, puts a product into circulation
without being deemed to be the producer ([Paragraph
3(3)] of the Danish law on liability for defective products);

the producer can be held liable and the intermediary
therefore does not bear responsibility where the producer
is not held liable (Paragraph 10 of the Danish law on
liability for defective products);

(c)

the intermediary has a right of contribution or recourse
against the producer (Paragraph 11(3) of the Danish law
on liability for defective products)?

Q u e s t i o n 5

Does the Directive (Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning
liability for defective products) preclude a Member State from
maintaining a non-statutory, but case-law-based, rule, which
existed before the Directive on liability for defective products,
relating to liability for defective products under which the
intermediary — without himself being the producer or treated
as a producer under Article 3 of the Directive — is responsible
for:

— the producer’s liability for defective products under the

Directive on liability for defective products,

— the producer’s fault-based liability established in case-law
in respect of liability for defective products resulting in
personal injury or damage to consumers’ property,

where the case-law-based rule concerned requires that:

(a)

(b)

(c)

the intermediary be defined as any person who, in the
course of his business, puts a product into circulation
without being deemed to be the producer
([Para-
graph 3(3)] of the Danish law on liability for defective
products);

the producer can be held liable and the intermediary
therefore does not bear responsibility where the producer
is not held liable (Paragraph 10 of the Danish law on
liability for defective products);

the intermediary has a right of contribution or recourse
against the producer (Paragraph 11(3) of the Danish law
on liability for defective products)?

(1) OJ L 210 of 7.8.1985, p. 29.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 22 July 2003 in the case of
Egon Schempp against Finanzamt München V

(Case C-403/03)

(2003/C 304/16)

Reference has been made to the Court of Justice of the
the Bundesfinanzhof
European Communities by order of
(Federal Finance Court) of 22 July 2003, received at the Court
Registry on 29 September 2003, for a preliminary ruling in
the case of Egon Schempp against Finanzamt München V on
the following questions:

C 304/12

EN

Official Journal of the European Union

13.12.2003

1.

2.

Is Article 12 of the EC Treaty (as amended by the
Treaty of Amsterdam) to be interpreted as meaning that
Paragraph 1a(1)1, Paragraph 10(1)1 of the Einkommen-
steuergesetz, to the effect that a taxpayer resident in
Germany is not entitled to deduct maintenance payments
to his divorced spouse resident in Austria whereas he
would be entitled to do so were she still resident in
Germany, is incompatible therewith?

answered in the negative:

is
If Question 1 is
Article 18(1)EC to be interpreted as meaning that Para-
graph 1a(1)1, Paragraph 10(1)1 of the Einkommensteuer-
gesetz, to the effect that a taxpayer resident in Germany
is not entitled to deduct maintenance payments for his
divorced spouse resident in Austria whereas he would be
entitled to do so were she still resident in Germany, is
incompatible therewith?

Reference for a preliminary ruling by the Gerechtshof te
’s-Gravenhage by order of that Court of 28 August 2003
in the proceedings between Class International BV and
1. Colgate-Palmolive Company, 2. Unilever NV, 3. Smith-
kline Beecham PLC, and 4. Beecham Group PLC

(Case C-405/03)

(2003/C 304/17)

the Gerechtshof

Reference has been made to the Court of Justice of the
European Communities by order of
te
’s-Gravenhage (Regional Court of Appeal, The Hague) of
28 August 2003, received at the Court Registry on 29 Septem-
ber 2003, for a preliminary ruling in the proceedings between
Class International BV and 1. Colgate-Palmolive Company,
2. Unilever NV, 3. Smithkline Beecham PLC, and 4. Beecham
Group PLC on the following questions:

(1) May the proprietor of a trade mark oppose the introduc-
tion without his consent of goods from third countries,
bearing a trade mark within the meaning of the directive
and/or of Regulation No 40/94 (1), into the territory of a
Member State (in this case the territory of the Netherlands/
Benelux countries) in the context of transit or transit
trade as referred to below?

(2) Does ‘using [a sign] in the course of

trade’ within
the meaning of the opening words of Article 5(1) in
conjunction with Article 5(3)(b) and (c) of the directive
and the opening words of Article 9(1) in conjunction
with Article 9(2)(b) and (c) of Regulation No 40/94 cover
the storing, in a customs office or warehouse within the

territory of a Member State, of original branded goods
(bearing a trade mark within the meaning of the afore-
mentioned directive, the UBL and/or Regulation No 40/
94) which have not been introduced into the EEA by the
proprietor of the trade mark or with his consent, which
come from outside the EEA and which have the customs
status of non-Community goods (for example, T 1 or
AAD)?

(3) Does it make any difference to the answers to Ques-
tions (1) and (2) whether or not, at the time of entering
the abovementioned territory, the final destination of
those goods is specified, or that no (purchase) agreement
has or has yet been concluded with a customer in a third
country in respect of those goods?

(4)

In the context of answering Questions (1), (2) and (3), is
it relevant whether there are additional circumstances,
such as

(a)

(b)

(c)

(d)

(e)

the circumstance that the trader, who is the owner
of the goods in question or in any event is entitled
to dispose of them and/or engages in parallel trade,
is established in one of the Member States;

the circumstance that those goods are being offered
for sale or sold by the trader established in a Member
State, from that Member State, to another trader
established in a Member State, whilst the place of
delivery is not (yet) specified;

the circumstance that those goods are being offered
for sale or sold by the trader established in a Member
State, from that Member State, to another trader
established in a Member State, whilst the place of
delivery of the goods to be offered for sale or sold in
that way is specified but the final destination is not,
whether or not with the expressly statement or
contractual restriction that the goods involved are
non-Community (transit) goods;

the circumstance that those goods are being offered
for sale or sold by the trader established in a Member
State to a trader established outside the EEA, whilst
the place of delivery and/or final destination of the
goods may or may not be specified;

the circumstance that those goods are being offered
for sale or sold by the trader established in a Member
State to a trader established outside the EEA, who
the (parallel) trader knows or has serious reason to
suppose will resell or supply the goods in question
to ultimate consumers within the EEA?