Judgment of the Court of 18 November 2003 in Case C-216/01 (Reference for a preliminary ruling from the Handelsgericht Wien): Budějovický Budvar, národní podnik v Rudolf Ammersin GmbH (Protection of geographical indications and designations of origin — Bilateral convention between a Member State and a non-member country protecting indications of geographical source from that non-member country — Articles 28 EC and 30 EC — Regulation (EEC) No 2081/92 — Article 307 EC — Succession of States in respect of treaties)
Date: 2004-01-10
Institutions: Court of Justice
Subjects: EU Member State, bilateral agreement, designation of origin, interpretation of the law, location of production, third country

C 7/6

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Official Journal of the European Union

10.1.2004

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 20 November 2003

in Case C-212/01 (Reference for a preliminary ruling from
the Landesgericht Innsbruck): Margarete Unterpertinger
v Pensionsversicherungsanstalt der Arbeiter (1)

(Sixth VAT Directive — Exemption for medical care provided
in the exercise of the medical and paramedical professions
— Expert medical report)

(2004/C 7/08)

(Language of the case: German)

of 18 November 2003

in Case C-216/01 (Reference for a preliminary ruling from
the Handelsgericht Wien): Budeˇjovický Budvar, národní
podnik v Rudolf Ammersin GmbH (1)

(Protection of geographical indications and designations of
origin — Bilateral convention between a Member State and
a non-member country protecting indications of geographical
source from that non-member country — Articles 28 EC and
30 EC — Regulation (EEC) No 2081/92 — Article 307 EC
— Succession of States in respect of treaties)

(2004/C 7/09)

(Language of the case: German)

(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-212/01: Reference to the Court under Article 234
EC by the Landesgericht Innsbruck (Austria) for a preliminary
ruling in the proceedings pending before that court between
Margarete Unterpertinger and Pensionsversicherungsanstalt
der Arbeiter, on the interpretation of Article 13A(1)(c) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1) and the Court’s case-
law resulting,
in particular, from Case C-384/98 D. v W.
[2000] ECR I-6795, the Court (Fifth Chamber), composed of:
A. Rosas (Rapporteur), acting for the President of the Fifth
Chamber, D.A.O. Edward and A. La Pergola, Judges; C. Stix-
Hackl, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 20 November
2003, in which it has ruled:

Article 13A(1)(c) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment, is to be interpreted as meaning that
the exemption from value added tax under that provision does not
apply to the services of a doctor consisting of making an expert report
on a person’s state of health in order to support or exclude a claim
for payment of a disability pension. The fact that the medical expert
was instructed by a court or pension insurance institution is irrelevant
in that respect.

(1) OJ C 212 of 28.7.2001.

In Case C-216/01: Reference to the Court under Article 234 EC
by the Handelsgericht Wien (Austria) for a preliminary ruling
in the proceedings pending before that court between Budeˇjo-
vický Budvar, národní podnik and Rudolf Ammersin GmbH
on the interpretation of Articles 28 EC, 30 EC and 307 EC,
and Council Regulation (EEC) No 2081/92 of 14 July 1992 on
the protection of geographical indications and designations of
origin for agricultural products and foodstuffs (OJ 1992 L 208,
p. 1), as amended by Council Regulation (EC) No 535/97 of
17 March 1997 (OJ 1997 L 83, p. 3), the Court, composed of:
V. Skouris, President, P. Jann, C.W.A. Timmermans (Rappor-
teur), C. Gulmann and J.N. Cunha Rodrigues (Presidents of
Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
R. Schintgen, N. Colneric and S. von Bahr, Judges; A. Tizzano,
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 18 November 2003, in which it has
ruled:

1. Article 28 EC and Council Regulation (EEC) No 2081/92 of
14 July 1992 on the protection of geographical indications
and designations of origin for agricultural products and
foodstuffs, as amended by Council Regulation (EC) No 535/
97 of 17 March 1997, do not preclude the application of a
provision of a bilateral agreement between a Member State and
a non-member country under which a simple and indirect
indication of geographical origin from that non-member country
is accorded protection in the importing Member State, whether
or not there is any risk of consumers being misled, and the
import of a product lawfully marketed in another Member State
may be prevented.

2. Article 28 EC precludes the application of a provision of a
bilateral agreement between a Member State and a non-
member country under which a name which in that country
does not directly or indirectly refer to the geographical source of

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Official Journal of the European Union

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3.

the product that it designates is accorded protection in the
importing Member State, whether or not there is any risk of
consumers being misled, and the import of a product lawfully
marketed in another Member State may be prevented.

The first paragraph of Article 307 EC is to be interpreted as
permitting a court of a Member State, subject to the findings to
be made by that court having regard inter alia to the criteria set
out in this judgment, to apply the provisions of bilateral
agreements such as those at issue in the main proceedings,
concluded between that State and a non-member country and
according protection to a name from the non-member country,
even where those provisions prove to be contrary to the EC
Treaty rules, on the ground that they concern an obligation
resulting from agreements concluded before the date of the
accession of the Member State concerned to the European
Union. Pending the success of one of the methods referred to in
the second paragraph of Article 307 EC in eliminating any
incompatibilities between an agreement predating that accession
and the Treaty, the first paragraph of that article permits that
State to continue to apply such an agreement in so far as it
contains obligations which remain binding on that State under
international law.

(1) OJ C 245 of 1.9.2001.

ruling in the criminal proceedings before that court against
Piergiorgio Gambelli and Others on the interpretation of
Articles 43 EC and 49 EC, the Court, composed of: V. Skouris,
President, P.
Jann, C.W.A. Timmermans and J.N. Cunha
Rodrigues (Presidents of Chambers), D.A.O. Edward (Rappor-
teur), R. Schintgen, F. Macken, N. Colneric and S. von Bahr,
Judges; S. Alber, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
6 November 2003, in which it has ruled:

National legislation which prohibits on pain of criminal penalties the
pursuit of the activities of collecting, taking, booking and forwarding
offers of bets, in particular bets on sporting events, without a licence
or authorisation from the Member State concerned constitutes a
restriction on the freedom of establishment and the freedom to provide
services provided for in Articles 43 and 49 EC respectively. It is for
the national court to determine whether such legislation, taking
account of the detailed rules for its application, actually serves the
aims which might justify it, and whether the restrictions it imposes
are disproportionate in the light of those objectives.

(1) OJ C 245 of 1.9.2001.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

of 6 November 2003

of 25 November 2003

in Case C-243/01 (Reference for a preliminary ruling from
the Tribunale di Ascoli Piceno): Piergiorgio Gambelli and
Others (1)

in Case C-278/01: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Right of establishment — Freedom to provide services —
Collection of bets on sporting events in one Member State
and transmission by internet to another Member State —
Prohibition enforced by criminal penalties — Legislation in
a Member State which reserves the right to collect bets to
certain bodies)

(2004/C 7/10)

(Language of the case: Italian)

(Failure of a Member State to fulfil obligations — Judgment
of the Court establishing such failure — Non-compliance —
Article 228 EC — Financial penalties — Penalty payment
— Quality of bathing water — Directive 76/160/EEC)

(2004/C 7/11)

(Language of the case: Spanish)

(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-243/01: Reference to the Court under Article 234 EC
by the Tribunale di Ascoli Piceno (Italy) for a preliminary

In Case C-278/01, Commission of the European Communities
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent: S. Ortiz
Vaamonde): Application, first, for a declaration that, by not