Judgment of the Court (Fifth Chamber) of 7 January 2004 in Case C-60/02 (Reference for a preliminary ruling from the Landesgericht Eisenstadt): X (Counterfeit and pirated goods — No criminal penalty for the transit of counterfeit goods — Compatibility with Regulation (EC) No 3295/94)
Date: 2004-02-21
Institutions: Court of Justice
Subjects: export restriction, free circulation, industrial counterfeiting, intellectual property, interpretation of the law, marketing restriction, trade mark, trade-mark law

21.2.2004

EN

Official Journal of the European Union

C 47/7

Vaamonde): Application for a declaration that, by failing to
adopt the laws, regulations and administrative provisions
necessary to comply with Article 4(c) of Commission Directive
90/388/EEC of 28 June 1990 on competition in the markets
for telecommunications services (OJ 1990 L 192, p. 10) as
amended by Commission Directive 96/19/EC of 13 March
1996 (OJ 1996 L 74, p. 13), the Kingdom of Spain has failed
to fulfil
its obligations under those directives and the EC
Treaty, the Court (Fifth Chamber), composed of: P. Jann, acting
the Fifth Chamber, D.A.O. Edward
for the President of
(Rapporteur) and A. La Pergola, Judges; P. Léger, Advocate
General; R. Grass, Registrar, has given a judgment on 7 January
2004, in which it:

1. Declares that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Article 4(c)
of Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services, as
amended by Commission Directive 96/19/EC of 13 March
1996, the Kingdom of Spain has failed to fulfil its obligations
under that directive;

by failing to adopt the laws, regulations and administrative
provisions necessary to comply with Directive 98/84/EC of
the European Parliament and of the Council of 20 November
1998 on the legal protection of services based on, or consisting
of, conditional access (OJ 1998 L 320, p. 54), or, at the very
least, by failing to notify the Commission of the adoption of
those measures, the Kingdom of Spain has failed to fulfil its
obligations under that directive, the Court (Fifth Chamber),
composed of: P. Jann, acting for the President of the Fifth
Chamber, D.A.O. Edward (Rapporteur) and S. von Bahr,
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
has given a judgment on 7 January 2004, in which it:

1. Declares that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
98/84/EC of the European Parliament and of the Council of
20 November 1998 on the legal protection of services based
on, or consisting of, conditional access, the Kingdom of Spain
has failed to fulfil its obligations under that Directive;

2. Orders the Kingdom of Spain to pay the costs.

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 109 of 4.5.2002.

(1) OJ C 56 of 2.3.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-58/02: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations — Directive
98/84/EC — Information society — Radio broadcasting —
Services based on conditional access — Services consisting
of conditional access — Protected services — Legal protection
— Devices giving unauthorised access)

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-60/02 (Reference for a preliminary ruling from
the Landesgericht Eisenstadt): X (1)

(Counterfeit and pirated goods — No criminal penalty for
the transit of counterfeit goods — Compatibility with
Regulation (EC) No 3295/94)

(2004/C 47/12)

(Language of the case: German)

(2004/C 47/11)

(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-58/02, Commission of the European Communities
(Agents: G. Valero Jordana and M. Shotter v Kingdom of Spain
(Agent: S. Ortiz Vaamonde): Application for a declaration that,

In Case C-60/02: Reference to the Court under Article 234 EC
by the Landesgericht Eisenstadt (Austria) for a preliminary
ruling in the criminal proceedings before that court against X,
on the interpretation of Council Regulation (EC) No 3295/94
of 22 December 1994 laying down measures concerning the
entry into the Community and the export and re-export
from the Community of goods infringing certain intellectual
property rights (OJ 1994 L 341, p. 8), as amended by Council

C 47/8

EN

Official Journal of the European Union

21.2.2004

Regulation (EC) No 241/1999 of 25 January 1999 (OJ
1999 L 27, p. 1), the Court (Fifth Chamber), composed of:
D.A.O. Edward (Rapporteur), acting for the President of the
Fifth Chamber, A. La Pergola and P. Jann, Judges; D. Ruiz-
Jarabo Colomer, Advocate General; R. Grass, Registrar, has
given a judgment on 7 January 2004, in which it has ruled:

1. Articles 2 and 11 of Council Regulation (EC) No 3295/94 of
22 December 1994 laying down measures concerning the entry
into the Community and the export and re-export from the
Community of goods infringing certain intellectual property
rights, as amended by Council Regulation (EC) No 241/1999
of 25 January 1999, are applicable to situations in which
goods in transit between two countries not belonging to the
European Community are temporarily detained in a Member
State by the customs authorities of that State.

2.

The duty to interpret national law so as to be compatible with
Community law, in the light of its wording and purpose, in
order to attain the aim pursued by the latter, cannot, of itself
and independently of a law adopted by a Member State, have
the effect of determining or aggravating the liability in criminal
law of an entity which has failed to meet the requirements of
Regulation No 3295/94.

(1) OJ C 131 of 1.6.2002.

interpretation of Article 6(1)(b) of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40,
p. 1), the Court (Fifth Chamber), composed of: P. Jann, acting
for the President of the Fifth Chamber, C.W.A. Timmermans
and D.A.O. Edward (Rapporteur), Judges; C. Stix-Hackl, Advo-
cate General; M.-F. Contet, Principal Administrator, for the
Registrar, has given a judgment on 7 January 2004, in which
it has ruled:

Article 6(1)(b) of First Council Directive 89/104/EEC of 21 Decem-
ber 1988 to approximate the laws of the Member States relating to
trade marks is to be interpreted as meaning that, where there exists a
likelihood of aural confusion between a word mark registered in one
Member State and an indication, in the course of trade, of the
geographical origin of a product originating in another Member
State, the proprietor of the trade mark may, pursuant to Article 5 of
Directive 89/104, prevent the use of the indication of geographical
origin only if that use is not in accordance with honest practices in
industrial or commercial matters. It is for the national court to carry
out an overall assessment of all the circumstances of the particular
case in that regard.

(1) OJ C 144 of 15.6.2002.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-100/02 (Reference for a preliminary ruling from
the Bundesgerichtshof): Gerolsteiner Brunnen GmbH &
Co. v Putsch GmbH (1)

(Directive 89/104/EEC — Limitation of the effects of a trade
mark in relation to indications concerning geographical
origin — Use of a geographical indication as a trade mark
as an element of use in accordance with ‘honest practices in
industrial or commercial matters’)

(2004/C 47/13)

(Language of the case: German)

(Fifth Chamber)

of 7 January 2004

in Case C-201/02 (Reference for a preliminary ruling from
the High Court of Justice (England & Wales), Queen’s
Bench Division (Administrative Court): The Queen on
the application of Delena Wells v Secretary of State for
Transport, Local Government and the Regions (1)

(Directive 85/337/EEC — Assessment of the effects of
certain projects on the environment — National measure
granting consent for mining operations without an environ-
mental impact assessment being carried out — Direct effect
of directives Triangular situation)

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

(2004/C 47/14)

(Language of the case: English)

In Case C-100/02: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary
ruling in the proceedings pending before that court between
Gerolsteiner Brunnen GmbH & Co. and Putsch GmbH, on the

In Case C-201/02: Reference to the Court under Article 234
EC by the High Court of Justice of England and Wales, Queen’s