Judgment of the Court (Second Chamber) of 12 October 2004 in Case C-106/03 P: Vedial SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Word and figurative mark HUBERT — Opposition of the proprietor of the national word mark SAINT-HUBERT 41 — Capacity of OHIM as defendant before the Court of First Instance)
Date: 2004-12-04
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 300/18

EN

Official Journal of the European Union

4.12.2004

JUDGMENT OF THE COURT

(Second Chamber)

of 14 October 2004

in Case C-55/03: Commission of the European Commu-
nities v Kingdom of Spain (1)

(Workers — Recognition of diplomas — Civil air traffic
controllers — Inadmissibility)

(2004/C 300/35)

(Language of the case: Spanish)

In Case C-55/03: action under Article 226 EC for failure to
fulfil obligations, brought on 11 February 2003 by Commis-
sion of the European Communities (Agents: M. Patakia and M.
Valverde López) against Kingdom of Spain (Agent: S. Ortiz
(Second Chamber), composed of:
Vaamonde) — the Court
C.W.A. Timmermans (Rapporteur), President of the Chamber,
C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges;
Advocate General: P. Léger; Registrar: R. Grass, gave a judg-
ment on 14 October 2004, in which it:

1. Dismisses the action as inadmissible;

made by decision of 6 November 2002, received at the Court
on 14 February 2003,
in the proceedings between Wolff &
Müller GmbH & Co. KG and José Filipe Pereira Félix — the
Court (Second Chamber), composed of: C.W.A. Timmermans
(Rapporteur), President of the Chamber, C. Gulmann and R.
Schintgen, F. Macken and N. Colneric, Judges; D. Ruiz-Jarabo
Colomer, Advocate General; M. Múgica Arzamendi, Principal
Administrator, for the Registrar, has given a judgment on 12
October 2004, in which it has ruled:

Article 5 of Directive 96/71/EC of the European Parliament and of
the Council of 16 December 1996 concerning the posting of workers
in the framework of the provision of services, interpreted in the light
of Article 49 EC, does not preclude, in a case such as that in the
main proceedings, a national system whereby, when subcontracting
the conduct of building work to another undertaking, a building
contractor becomes liable, in the same way as a guarantor who has
waived benefit of execution, for the obligation on that undertaking or
that undertaking's subcontractors to pay the minimum wage to a
worker or to pay contributions to a joint scheme for parties to a
collective agreement where the minimum wage means the sum payable
to the worker after deduction of tax, social security contributions,
payments towards the promotion of employment or other such social
insurance payments (net pay), if the safeguarding of workers' pay is
not the primary objective of the legislation or is merely a subsidiary
objective.

2. Orders the Commission of the European Communities to pay the

(1) OJ C 112 of 10.5.2003.

costs.

(1) OJ C 83 of 5.4.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 12 October 2004

JUDGMENT OF THE COURT

(Second Chamber)

of 12 October 2004

in Case C-60/03 (reference for a preliminary ruling from
the Bundesarbeitsgericht): Wolff & Müller GmbH & Co.
KG v José Filipe Pereira Félix (1)

(Article 49 EC — Restrictions on freedom to provide services
— Undertakings in the construction sector — Subcontracting
— Obligation on an undertaking to act as guarantor in
respect of the minimum remuneration of workers employed
by a subcontractor)

(2004/C 300/36)

(Language of the case: German)

in Case C-106/03 P: Vedial SA v Office for Harmonisation
and Designs)
in the Internal Market

(Trade Marks

(OHIM) (1)

(Appeal — Community trade mark — Article 8(1)(b) of
Regulation (EC) No 40/94 — Likelihood of confusion —
Word and figurative mark HUBERT — Opposition of the
proprietor of the national word mark SAINT-HUBERT 41 —
Capacity of OHIM as defendant before the Court of First
Instance)

(2004/C 300/37)

(Language of the case: French)

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

In Case C-60/03: reference for a preliminary ruling under
(Germany),
Article 234 EC,

from the Bundesarbeitsgericht

In Case C-106/03 P: appeal under Article 56 of the Statute of
the Court of Justice, lodged at the Court on 27 February 2003,
Vedial SA, established in Ludres (France), (avocats: T. van Innis,
G. Glas and F. Herbert) and Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) (Agents: O.
Montalto and P. Geroulakos — the Court (Second Chamber),

4.12.2004

EN

Official Journal of the European Union

C 300/19

composed of: C.W.A. Timmermans, President of the Chamber,
C. Gulmann, R. Schintgen, F. Macken (Rapporteur), and N.
Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R.
Grass, Registrar, has given a judgment on 12 October 2004, in
which it has ruled:

JUDGMENT OF THE COURT

(First Chamber)

of 7 October 2004

1. Dismisses the appeal;

2. Orders Vedial SA to pay the costs.

(1) OJ C 146 of 21.6.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 14 October 2004

in Case C-143/03: Commission of the European Commu-
nities against the Italian Republic (1)

(Failure to fulfil obligations — Article 28 EC — National
legislation subjecting alkaline batteries to a marking scheme)

(2004/C 300/38)

(Language of the case: German)

In Case C-143/03: Commission of the European Communities
(Agents: L. Visaggio and R. Amorosi) v the Italian Republic
(Agent: I.M. Braguglia, assisted by P. Gentili) — action under
Article 226 EC for failure to fulfil obligations, brought on 28
March 2003 — the Court (First Chamber), composed of P.
Jann, President of
the Chamber, N. Colneric (Rapporteur),
J. N. Cunha Rodrigues, M. Ilešič and E. Levits, Judges; Advocate
General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, has given
a judgment on 14 October 2004, in which it:

1) Declares

by

that,

batteries
subjecting manganese
containing less than 0.0005 % mercury by weight to a marking
scheme which requires,
in particular, an indication as to the
presence of heavy metals, the Italian Republic has failed to fulfil
its obligations under Article 28 EC.

alkaline

2) Orders the Italian Republic to pay the costs.

in Case C-189/03: Commission of the European Commu-
nities v Kingdom of the Netherlands (1)

(Failure of a Member State to fulfil obligations — Freedom
to provide services — Restrictions — Private security firms)

(2004/C 300/39)

(Language of the case: Dutch)

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

In Case C-189/03: Action under Article 226 EC for failure to
fulfil obligations, brought on 5 May 2003, Commission of the
European Communities (Agents: M. Patakia and W. Wils) v
Kingdom of the Netherlands (Agents: H.G. Sevenster, C. Wissels
and N.A.J. Bel) — the Court (First Chamber), composed of: P.
Jann (Rapporteur), President of
the Chamber, A. Rosas,
S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; J.
Kokott, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 7 October
2004, in which it:

1. Declares that, by adopting,

the Law on
private security firms and detective agencies of 24 October 1997,
provisions which require that:

in the framework of

— undertakings that wish to provide services in the Netherlands
and their managers must have a permit, without taking into
account the obligations to which foreign service providers are
already subject in the Member State where they are established,
and by charging fees for this permit, and

— members of the staff of these firms seconded from the Member
State where they are established to work in the Netherlands
have a proof of identity card issued by the Netherlands autho-
rities, in so far as the checks to which cross-frontier providers
of services are already subject in their Member State of origin
are not taken into account for the requirement in question,

the Kingdom of the Netherlands has failed to fulfil its obligations
under Article 49 EC;

2. Orders the Kingdom of the Netherlands to pay three quarters of
the costs of the Commission of the European Communities. For
the rest, each party is ordered to bear its own costs.

(1) OJ C 135 of 7.6.2003.

(1) OJ C 158 of 5.7.2003.