Case C-231/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per il Lazio by order of that court of 23 February 2004 in the case of Confcooperative Unione Regionale della Cooperazione FVG Federagricole and Others against Ministero delle Politiche Agricole e Forestali and Regione Veneto
Date: 2004-08-07
Institutions: Court of Justice
Subjects: Hungary, TRIPS, association agreement (EU), designation of origin, interpretation of the law, jurisdiction, product designation, wine

C 201/10

EN

Official Journal of the European Union

7.8.2004

The applicant claims that the Court should:

— declare that, by not allowing to be taken into account the
experience and seniority, in another Member State's public
sector, of Community nationals who join the French
hospital public service, the French Republic has failed to
fulfil its obligations under Article 39 EC and Article 7 of
Council Regulation (EEC) No 1612/68 of 15 October 1968
on freedom of movement of workers within the Com-
munity (1);

— order the French Republic to pay the costs.

States, of the one part, and the Republic of Hungary, of the
other part, concluded on 16 December 1991 and published
in OJ 1993 L 347, provide a proper and sufficient legal
basis for conferring on the European Community power to
conclude the Community Agreement between the European
Community and the Republic of Hungary on the reciprocal
protection and control of wine names of 29 November
1993 (OJ 1993 L 337), with particular reference to Article
65(1), to joint declaration no 13 and to Annex XIII (points
3, 4 and 5) of the European Agreement of 1991 on the
possible reservation of the sovereignty and jurisdiction of
the Member States in the matter of national geographical
names used with reference to food and wine and restraint
of any transfer of jurisdiction of competence in that matter
to the European Community?

Pleas in law and main arguments

The Member States are required to take into account, for the
purposes of migrant workers' recruitment to, and grading and
determination of seniority in their public services, employment
periods in a comparable field of activity in another Member
State, on the same conditions as apply to seniority and profes-
sional experience attained in the workers' own systems. The
French provisions in force do not allow the experience and
seniority,
in another Member State's public sector, of Com-
munity nationals who join the French hospital public service to
be taken into account.

2. In view of what is said in opinion no 1/94 of the Court of
Justice of the European Communities concerning the exclu-
sive jurisdiction of the European Community, should the
Community Agreement between the European Community
and the Republic of Hungary on the protection and control
of wine names of 29 November 1993 (OJ 1993 L 337),
which specifies the protection of geographical names which
have intellectual and commercial property significance, be
declared invalid and of no effect within the Community
legal order because the agreement itself has not been rati-
fied by the individual Member States of the European Com-
munity?

(1) OJ L 257, of 19.10.1968, p. 2.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale per il Lazio by order of that
court of 23 February 2004 in the case of Confcooperative
Unione Regionale della Cooperazione FVG Federagricole
and Others against Ministero delle Politiche Agricole e
Forestali and Regione Veneto

3. In the event that the Community Agreement of 1993 (OJ
1993 L 337) is to be regarded as lawful and applicable in
its entirety, should the prohibition of the use in Italy after
2007 of the name “Tocai”, which arises from the exchange
of letters between the parties to the agreement, annexed to
the agreement, be regarded as invalid and of no effect
because it is inconsistent with the rules governing geogra-
phical homonyms established in the agreement itself (see
Article 4(5) of the protocol to the agreement)?

(Case C-231/04)

(2004/C 201/19)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale Amministrativo
Regionale per il Lazio of 23 February 2004, received at the
Court Registry on 3 June 2004, for a preliminary ruling in the
case of Confcooperative Unione Regionale della Cooperazione
FVG Federagricole and Others against Ministero delle Politiche
Agricole e Forestali and Regione Veneto on the following ques-
tions:

‘1. Can the Europe Agreement establishing an association
between the European Communities and their Member

that

4. Should the Second Joint Declaration annexed to the 1993
the
(OJ 1993 L 337), which implies
agreement
contracting parties were unaware, at the time of their nego-
tiations, of
the existence of homonyms connected with
European and Hungarian wines, be regarded as a clear
the Italian and
misrepresentation of reality (given that
Hungarian names used to refer to “Tocai” wines have
existed alongside each other for centuries, were officially
recognised in 1948 in an agreement between Italy and
Hungary and were recently brought within the scope of
Community law) such as to render null and void that part
of the 1993 agreement which prohibits the use in Italy of
the name Tocai, on the basis of Article 48 of the Vienna
convention on the law of the Treaties?

7.8.2004

EN

Official Journal of the European Union

C 201/11

5. In light of Article 59 of the Vienna convention on the law
of the Treaties,
is the TRIPS agreement on trade-related
aspects of intellectual property rights (OJ 1994 L 336),
the World
which was concluded within the context of
Trade Organisation and entered into force on 1 January
1996, thus after the Community Agreement of 1993 (OJ
1994 L 337) entered into force,
to be interpreted as
meaning that its provisions governing homonyms in vine
names apply in place of those of the Community Agree-
ment of 1993 where there is inconsistency between the
two, given that the parties to both agreements are the
same?

6. In the case of two names that are homonyms and refer to
two different wines produced in two different countries
both party to the TRIPS Agreement (and both where the
homonym relates to two geographical names used in both
the countries party to TRIPS and where it relates to a
geographical name in one country and the like name relates
to a vine traditionally cultivated in another country party to
TRIPS), must Articles 22 to 24 of the Third Part of Annex
C to the Treaty Establishing the World Trade Organisation,
which contains the TRIPS Agreement (OJ 1994 L 336),
which entered into force on 1 January 1996, be interpreted
as meaning that both the names may continue to be used
provided that they have been used in the past by the respec-
tive producers either in good faith or for at least 10 years
prior to 15 April 1994 (Article 24(4)) and each name
clearly indicates the country or region or area of the origin
of the wine to which it refers in such a way as not to
mislead consumers?’

Reference for a preliminary ruling by the Arbeitsgericht
Düsseldorf by order of that court of 5 May 2004 in the
case of Ms Gül Demir against Securicor Aviation Limited,
Securicor Aviation (Germany) Limited and Kötter Security
GmbH & Co. KG.

Limited, Securicor Aviation (Germany) Limited and Kötter
Security GmbH & Co. KG, on the following question:

1. In examining whether there is — irrespective of the ques-
tion of ownership — a transfer of a business within the
meaning of Article 1 of Directive 2001/23/EC (1)
in the
context of a fresh award of a contract, does the transfer of
the assets from the original contractor to the new contractor
— having regard to all the facts — presuppose their transfer
for independent commercial use by the transferee? By exten-
sion, is conferment on the contractor of a right to determine
the manner in which the assets are to be used in its own
commercial interest the essential criterion for a transfer of
assets? On that basis, is it necessary to determine the opera-
tional significance of the contracting authority's assets for
the service provided by the contractor?

2. If the Court answers Question 1 in the affirmative:

(a) Is it precluded to classify assets as being for independent
commercial use if
they are made available to the
contractor by the contracting authority solely for their
use and responsibility for maintaining those assets,
including
the
contracting authority?

associated costs,

is borne by

the

(b) Is there independent commercial use by the contractor
when, for the purpose of conducting airport security
checks, it uses the walk-through metal detectors, hand-
held metal detectors and X-ray equipment supplied by
the contracting authority?

(1) OJ L 82, 22.3.2001, p. 16.

Action brought on 4 June 2004 by the Commission of the
European Communities against the Kingdom of Spain

(Case C-233/04)

(2004/C 201/20)

(Case C-235/04)

(2004/C 201/21)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Düsseldorf
(Labour Court, Düsseldorf) (Germany) of 5 May 2004, received
at the Court Registry on 3 June 2004, for a preliminary ruling
in the case of Ms Gül Demir against Securicor Aviation

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 4 June
2004 by the Commission of the European Communities, repre-
sented by D.M. van Beek and Gregorio Valero Jordana, acting
as Agents, with an address for service in Luxembourg.