Case C-405/03: 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. Smithkline Beecham PLC, and 4. Beecham Group PLC
Date: 2003-12-13
Institutions: Court of Justice
Subjects: interpretation of the law, storage, trade mark, trade-mark law

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?

13.12.2003

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Official Journal of the European Union

C 304/13

(5) Must the term ‘offering’ in the provisions referred to in
Question (1) be construed as also meaning the offering
(for sale) of original branded goods (bearing a trade mark
within the meaning of the directive, the UBL and/or
Regulation 40/94) which are stored in a customs office
or warehouse within the territory of a Member State,
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 status of
non-Community goods (for example, T 1 or AAD), in the
circumstances set out above in Questions (3) and (4)?

(6) With which of the parties does the burden of proof rest
as regards the acts mentioned above under (1), (2) and
(5)?

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11 of 14.1.1994, p. 1).

Pleas in law and main arguments

The period for transposition of the directive expired on 30 June
2002.

(1) OJ 2000 L 14 of 20.1.2000, p. 29.

Action brought on 30 September 2003 by the Italian
Republic against the Commission of the European Com-
munities

(Case C-430/03)

(2003/C 304/19)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 September 2003 by the Italian Republic
represented by Ivo M. Braguglia, acting as Agent and Maurizio
Fiorilli, Avvocato dello Stato.

Action brought on 1 October 2003 by the Commission
of the European Communities against the Italian Republic

The applicant claims that the Court should:

(Case C-410/03)

(2003/C 304/18)

annul Commission Decision C(2003) 2587 def. of 22 July
2003 in so far as it excludes from Community financing the
following entries:

a)

Fruit and vegetables — ITALY — 1515 — Flat-rate
corrections of 5 % (2000/2001) and 10 % (1999/2000)
for shortcomings in controls: EUR 22 251 827,08

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 1 October
2003 by the Commission of the European Communities
represented by Karen Banks and Knut Simonsson, acting 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 1999/95/EC (1) of the European Parliament and
of the Council of 13 December 1999 concerning the
enforcement of provisions in respect of seafarers’ hours
of work on board ships calling at Community ports or
by failing to communicate those provisions to the
Commission, the Italian Republic has failed to fulfil its
obligations under that directive;

— order the Italian Republic to pay the costs.

b) Olive oil, fibre plants and seed — ITALY —1210 —
Flat-rate correction of 2 % for shortcomings in the
management
EUR
13 048 335,00.

effectiveness of

controls:

and

Pleas in law and main arguments

The applicant submits that the flat-rate corrections concerning
the system of aid for the processing of tomatoes and the flat-
rate correction concerning the system of production aid for
olive oil, notified by Commission Decision 2003/536/EC (1) of
22 July 2003 (notified under document number C(2003)
2587) are unlawful in so far as they are based on inadequate
investigation and in breach of the rules of co-operation in
good faith. According to the applicant, the financial corrections
should therefore be annulled.

(1) OJ 2003 L 184 of 23.7.2003, p. 42.