Judgment of the Court of 21 October 2003 in Joined Cases C-317/01 and C-369/01 (Reference for a preliminary ruling from the Bundessozialgericht): Eran Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit (EEC-Turkey Association — Interpretation of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 — Abolition of restrictions on the freedom of movement for workers, on the freedom of establishment and on the freedom to provide services — "Standstill" clauses — Direct effect — Scope — Legislation of a Member State requiring a work permit in the international road haulage sector)
Date: 2003-12-13
Institutions: Court of Justice
Subjects: Türkiye, association agreement (EU), freedom to provide services, interpretation of the law, job access, road transport

C 304/4

EN

Official Journal of the European Union

13.12.2003

1. Article 93(3) of the EC Treaty (now Article 88(3) EC) must be
interpreted as precluding, in circumstances such as those in
the main proceedings, the levying of charges which finance
specifically an aid scheme that has been declared compatible
with the common market by a Commission decision, in so far
as those charges are imposed retroactively in respect of a period
prior to the date of that decision.

2.

The Commission Decision of 9 August 1996 relating to aid
measure No N 366/96 does not approve the retroactive effect
of the Law of 23 March 1998 on the establishment of a
budgetary fund for the health and quality of animals and
animal products.

(1) OJ C 303 of 27.10.2001.

JUDGMENT OF THE COURT

of 21 October 2003

in Joined Cases C-317/01 and C-369/01 (Reference for a
preliminary ruling from the Bundessozialgericht): Eran
Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v
Bundesanstalt für Arbeit (1)

(EEC-Turkey Association — Interpretation of Article 41(1)
of the Additional Protocol and Article 13 of Decision No 1/
80 — Abolition of restrictions on the freedom of movement
for workers, on the freedom of establishment and on the
freedom to provide services — ‘Standstill’ clauses — Direct
effect — Scope — Legislation of a Member State requiring a
work permit in the international road haulage sector)

(2003/C 304/06)

(Language of the case: German)

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

In Joined Cases C-317/01 and C-369/01: Reference to the
Court under Article 234 EC by the Bundessozialgericht
(Germany) for a preliminary ruling in the proceedings pending
before that court between Eran Abatay and Others (C-317/01)
Nadi Sahin (C-369/01) and Bundesanstalt für Arbeit, on the
interpretation of Article 41(1) of the Additional Protocol
signed at Brussels on 23 November 1970 and concluded,
approved and confirmed on behalf of the Community by
Council Regulation (EEC) No 2760/72 of 19 December 1972
(JO 1972 L 293, p. 1) and of Article 13 of Decision No 1/80

of 19 September 1980 on the development of the Association,
adopted by the Association Council set up by the Association
Agreement between the European Economic Community and
Turkey, the Court, composed of: V. Skouris, President, P. Jann,
C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
A. Rosas (Presidents of Chambers), D.A.O. Edward, A. La
Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken,
N. Colneric and S. von Bahr, Judges; J. Mischo, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 21 October 2003, in which it has
ruled:

— Article 41(1) of the Additional Protocol, signed at Brussels on
23 November 1970 and concluded, approved and confirmed
on behalf of the Community by Council Regulation (EEC)
No 2760/72 of 19 December 1972, and of Article 13 of
Decision No 1/80 of 19 September 1980 on the development
of the Association, adopted by the Association Council set up
by the Association Agreement between the European Economic
Community and Turkey, must be interpreted as meaning that:
those two provisions have direct effect in the Member States so
that Turkish nationals to whom they apply are entitled to rely
on them before the national courts to prevent the application of
inconsistent rules of national law;

— Article 41(1) and Article 13 prohibit generally the introduction
of new national restrictions on the right of establishment and
the freedom to provide services and freedom of movement for
workers from the date of the entry into force in the host Member
State of the legal measure of which those articles are part;

— Article 13 of Decision No 1/80 is applicable to Turkish
nationals only if their residence in the territory of the host
Member State is not only lawful but for a sufficient period to
allow them progressively to become integrated there;

— in circumstances such as those in the cases in the main
is
proceedings, Article 41(1) of
applicable to international road haulage of goods originating
in Turkey, where those services are carried out in the territory of
a Member State;

the Additional Protocol

— the protection of Article 41(1) can be relied on not only by an
undertaking established in Turkey which performs services in a
Member State but also by the employees of such an undertaking
to preclude a new restriction on the freedom to provide services;
however, it may not be relied on to that end by an undertaking
established in a Member State where those using the services
are established in the same Member State;

13.12.2003

EN

Official Journal of the European Union

C 304/5

— Article 41(1) precludes the introduction into the national
legislation of a Member State of a requirement of a work permit
in order for an undertaking established in Turkey to provide
services in the territory of that State, if such a permit was not
already required at the time of the entry into force of the
Additional Protocol;

— it is for the national court to determine whether the national
legislation applied to Turkish nationals such as the applicants
in the main proceedings is less favourable than that applicable
at the time of the entry into force of the Additional Protocol.

court between Adidas-Salomon AG, formerly Adidas AG,
Adidas Benelux BV and Fitnessworld Trading Ltd, on the
interpretation of Article 5(2) of First Council Directive 89/
104/EEC of 21 December 1988 approximating the laws of the
Member States relating to trade marks (OJ 1989 L 40, p. 1),
the Court (Sixth Chamber), composed of: J.-P. Puissochet,
President of the Chamber, C. Gulmann (Rapporteur), F. Ma-
cken, N. Colneric and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, has given a judgment on 23 October 2003, in
which it has ruled:

(1) OJ C 303 of 27.10.2001, OJ C 348 of 08.12.2001.

1. A Member State, where it exercises the option provided
by Article 5(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks, is bound to grant the specific
protection in question in cases of use by a third party of a later
mark or sign which is identical with or similar to the registered
mark with a reputation, both in relation to goods or services
which are not similar and in relation to goods or services which
are identical with or similar to those covered by that mark.

2.

3.

The protection conferred by Article 5(2) of Directive 89/104 is
not conditional on a finding of a degree of similarity between
the mark with a reputation and the sign such that there exists
a likelihood of confusion between them on the part of the
relevant section of the public. It is sufficient for the degree of
similarity between the mark with a reputation and the sign to
have the effect that the relevant section of the public establishes
a link between the sign and the mark.

The fact that a sign is viewed as an embellishment by the
relevant section of the public is not, in itself, an obstacle to the
protection conferred by Article 5(2) of Directive 89/104 where
the degree of similarity is none the less such that the relevant
section of the public establishes a link between the sign and the
mark. By contrast, where, according to a finding of fact by the
national court, the relevant section of the public views the sign
purely as an embellishment, it necessarily does not establish any
link with a registered mark, with the result that one of the
conditions of
the protection conferred by Article 5(2) of
Directive 89/104 is then not satisfied.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 23 October 2003

in Case C-408/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Adidas-Salomon AG,
formerly Adidas AG, Adidas Benelux BV v Fitnessworld
Trading Ltd (1)

(Directive 89/104/EEC — Article 5(2) — Trade marks with
a reputation — Protection against use of a sign in relation
to identical or similar goods or services — Degree of
similarity between the mark and the sign — Effect on the
public — Sign viewed as an embellishment)

(2003/C 304/07)

(Language of the case: Dutch)

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

(1) OJ C 3 of 5.1.2002.

In Case C-408/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that