Case C-170/04: Reference for a preliminary ruling by the Högsta Domstolen (Sweden) by order of that court of 30 March 2004 in case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against Riksåklagaren
Date: 2004-06-12
Institutions: Court of Justice
Subjects: State monopoly, alcoholic beverage, import restriction, interpretation of the law, monopoly, public health, retail selling

C 156/4

EN

Official Journal of the European Union

12.6.2004

The Appellant claims that the Court should:

Se c ond ple a i n la w

1. annul

in its entirety the judgment of the Court of First
Instance dated 13 January 2004 in case T-67/01,
JCB
Service against Commission of the European Communities
in so far as it infringes EU law by violating the Appellant's
rights of defence; or

the European Communities,

2. annul the judgment of the Court of First Instance dated 13
January 2004 in case T-67/01, JCB Service against Commis-
sion of
it
condemns an alleged general restriction on passive sales by
authorised distributors in the United Kingdom,
Ireland,
France and Italy, and an alleged restriction on the sources of
supply of distributors located in France and Italy, which
prevented cross-supplies between distributors, and in so far
as (ii) it imposes a fine on JCB Service for these alleged
infringements; and

in so far as (i)

3.

judgment on case T-67/01 pursuant

itself give final
to
Article 61 of the Statute (EC) of the Court and accordingly
annul, wholly or in part, the decision of the Commission
dated 21 December 2000 in case COMP.F.1/35.918 (2) and,
using its full jurisdiction, annul or reduce the fine of EUR
30 million imposed on JCB Service by the judgment of the
Court of First Instance dated 13 January 2004 in case T-67/
01,
the European
Communities; and

JCB Service against Commission of

The Appeallant contends that the CFI infringed Article 81 EC
by condemning the Appellant (i) for imposing a general prohi-
bition on passive sales on its distributors in the United
Kingdom, Ireland, France and Italy, and (ii) for restricting the
sources of supply of its distributors in France and Italy, on the
basis of an erroneous legal characterisation of the facts, distor-
tion of evidence and erroneous application of applicable EC
competition rules. This in turn engendered an application of
the prohibition laid down in Article 81 EC that is clearly incon-
sistent with the letter and the purpose of said provision.

T h i r d p l e a i n la w

This concerns the computation of the fine. Here, the Appellant
contends that the CFI infringed Article 15 of Regulation No 17
by violating major fundamental principles applicable to the
ordering of the fine, i.e., the principle of sound administration,
the legitimate expectations of private parties and the principle
of equal punishment, as well as by incorrectly assessing the
gravity and the duration of the alleged infringements and both
the attenuating and aggravating circumstances.

(1) OJ C 186, 30.06.2001, p. 9.

4.

in accordance with Article 69 of the
in all cases, order,
Court's Rules of Procedure,
the Commission to pay the
Appellant's costs incurred both before the Court of First
Instance and before this Court;

5. alternatively to 3., in the event that the Court does not itself
decide on the case, reserve the costs and remand the case to
the Court of First Instance for reconsideration in accordance
with the Court's judgment.

Pleas in law and main arguments:

F i r s t p le a i n la w

Reference for
a preliminary ruling by the Högsta
Domstolen (Sweden) by order of that court of 30 March
2004 in case of Klas Rosengren, Bengt Morelli, Hans
Särman, Mats Åkerström, Åke Kempe, Anders Kempe,
Jon
Mats Kempe, Björn Rosengren, Martin Lindberg,

Pieree and Tony Staf against Riksåklagaren

(Case C-170/04)

(2004/C 156/08)

The Appellant submits that the Court of First Instance (‘CFI’)
infringed Community law by refusing to address the claim that
the Appellant's rights of defence had been abused. First, the
Appellant contends that its rights of defence were breached due
to the excessive duration of the procedure before the Commis-
sion, which lasted for 27 years (from the date of the notifica-
tion to the date of the Commission Decision), preventing it
from exercising its rights as a notifying party. The CFI erred in
law by ignoring the consequences of such violation on the
Appellant's ability to effectively defend itself. Second,
the
Appellant contends that its right to a presumption of innocence
was also violated due to the CFI's failure to take into considera-
to apply the
tion certain exculpatory pieces of evidence,
method of faisceau d'indices (bundle of indicators) in order to
assess the relevant pieces of evidence, and to provide adequate
and impartial reasoning.

(2) OJ L 69, 12.03.2002, p. 1.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Högsta Domstolen (Court of
Appeal for Western Sweden) of 30 March 2004 received at the
Court Registry on 6 April 2004, for a preliminary ruling in the
case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats
Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn
Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against
Riksåklagaren the following questions concerning the interpre-
tation of Articles 28, 30 and 31 of the EC Treaty:

1. Can it be held that the above mentioned ban on imports
constitutes part of the retail monopoly's manner of opera-
tion and that on that basis it is not precluded by Article 28
and is to be examined only in the light of Article 31?

2. If the answer to Question 1 is yes, is the ban on imports in
such a case compatible with the conditions laid down for
State monopolies in Article 31?

12.6.2004

EN

Official Journal of the European Union

C 156/5

3. If the answer to Question 1 is no, is Article 28 of the EC
Treaty to be interpreted as meaning that it in principle
precludes the current ban on imports despite the obligation
of
to obtain, upon request, alcoholic
beverages which it does not hold in stock?

the Systembolaget

4. If the answer to Question 3 is yes, can such a ban on
imports be considered justified and proportional in order to
protect health and life of humans?on the following question:

Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche
SiSi-Werke GmbH & Co. Betriebs KG against the judg-
ment delivered on 28 January 2004 by the Second
Chamber of the Court of First Instance of the European
Communities
in Joined Cases T-146/02 to T-153/02
between Deutsche SiSi-Werke GmbH & Co. Betriebs KG
and the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

shape of the marks applied for and to the possible future
use of stand-up pouches for ‘fruit drinks and fruit juices’.

— By applying that test, the Court of First Instance imposed
requirements in relation to the shape of the marks applied
for, which were too stringent in view of the low degree of
distinctiveness required.

— In its consideration of the general interest for the purposes
of Article 7(1)(b) of Regulation No 40/94,
the Court
focused solely on the general interest of potential competi-
tors and thereby failed to take account of the actual situa-
tion, namely that the appellant has been using stand-up
pouches for decades without being imitated. The general
interest of consumers was not taken into account at all.

(1) Not yet published in the Official Journal of the European Communities.

(Case C-173/04 P)

(2004/C 156/09)

Action brought on 13 April 2004 by the Commission of
the European Communities against the Italian Republic

An appeal against the judgment delivered on 28 January 2004
by the Second Chamber of the Court of First Instance of the
European Communities in Joined Cases T-146/02 to T-153/02
between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM) was brought before the Court of
Justice of the European Communities on 8 April 2004 (Fax:
6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG,
represented by its lawyer, Anja Franke, Grünecker Kinkeldey
Stockmair & Schwanhäusser, Maximilianstr. 58, D-80538,
Münich, and by Martin Augenanger, patent attorney, Maximi-
lianstr. 58, D-80538, Münich.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance of 28
January 2004 in Joined Cases T-146/02 to T-153/02; (1)

2. order OHIM to pay the costs both at first instance and on

appeal.

Pleas in law and main arguments

The appeal alleges that the Court of First Instance infringed
Community law.

— The Court was mistaken as to the relevant sector and conse-
quently the shapes of the packaging, which under Article
7(1)(b) of Regulation No 40/94 are to be taken into
account as a point of comparison for the purpose of asses-
sing the distinctive character of the trade marks for which
registration is sought. The Court's assessment was not based
on the shapes of packaging available on the market for the
products specifically applied for (‘fruit drinks and fruit
juices’) but on the market for ‘liquids for human consump-
tion’ in general. No consideration was given to the question
of the extent to which the marks applied for are different
from the usual packaging for drinks. The Court's examina-
tion was conducted solely by reference to an assumed basic

(Case C-174/04)

(2004/C 156/10)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 13 April
2004 by the Commission of the European Communities, repre-
sented by Enrico Traversa and Claudio Loggi, acting as Agents.

The applicant claims that the Court should:

— Declare that Decree-Law No 192 of 25 May 2001,
converted to Law No 301 of 20 July 2001, entitled ‘Urgent
provisions to ensure the liberalisation and privatisation of
particular public service sectors’
incompatible with
Article 56 of the EC Treaty in so far as it automatically
suspends
the voting rights attached to shareholdings
exceeding 2 % of the share capital of companies in the elec-
tricity and gas sectors;

is

— Order the Italian Republic to pay the costs.

Decree-Law 192/2001 conflicts with Article 56 of
the EC
Treaty because it automatically suspends the voting rights
attached to shareholdings exceeding 2 % of the share capital of
companies in the electricity and gas sectors. That threshold
engenders a separate and restrictive treatment of investments
on the part of a particular category of investors and therefore
obstructs the free movement of capital within the European
Community. In particular, that restriction is a disincentive to
any public undertakings which might wish to acquire shares in
the companies in question since such undertakings will be
unable to take any active role in the decision-making of the
company and exercise any influence over its management.