Judgment of the Court (First Chamber) of 11 November 2004 in Case C-372/02 (reference for a preliminary ruling from the Bundessozialgericht): Roberto Adanez-Vega v Bundesanstalt für Arbeit (Regulation (EEC) No 1408/71 — Determination of the applicable legislation — Unemployment benefits — Conditions governing aggregation of periods of insurance or employment — National measure not taking into account a period of compulsory military service completed in another Member State)
Date: 2005-01-22
Institutions: Court of Justice
Subjects: EU law - national law, Germany, Spain, interpretation of the law, national service, social legislation, unemployment insurance

C 19/2

EN

Official Journal of the European Union

22.1.2005

1. Declares that, by applying an administrative practice under which
foodstuffs for everyday consumption fortified with vitamin A (in
the form of retinoids), vitamin D, folic acid, selenium, copper or
zinc which are lawfully produced or marketed in other Member
States may be marketed in the Netherlands, when they are neither
substitution products nor
reconstituted foodstuffs within the
meaning of Article 1(1)(c) and (d) of the Warenwetbesluit Toevoe-
ging micro-voedingsstoffen aan levensmiddelen (Decree imple-
menting the Warenwet, on the addition of micronutrients to food-
stuffs) of 24 May 1996 only if that enrichment meets a nutri-
tional need in the Netherlands population and,
in addition,
without ascertaining whether those fortified foodstuffs might be a
substitute for foodstuffs already marketed for which the addition of
those nutrients is mandatory, the Kingdom of the Netherlands has
failed to fulfil its obligations under Article 30 of the EC Treaty
(now, after amendment, Article 28 EC);

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

(1) OJ C 109 of 4.5.2002.

JUDGMENT OF THE COURT

(First Chamber)

of 11 November 2004

in Case C-372/02 (reference for a preliminary ruling from
the Bundessozialgericht): Roberto Adanez-Vega v Bunde-
sanstalt für Arbeit (1)

(Regulation (EEC) No 1408/71 — Determination of the
applicable legislation — Unemployment benefits — Condi-
tions governing aggregation of periods of
insurance or
employment — National measure not taking into account a
period of compulsory military service completed in another
Member State)

(2005/C 19/03)

(Language of the case: German)

A. Rosas and S. von Bahr,
Jacobs, Advocate
General; R. Grass, Registrar, has given a judgment on 11
November 2004, in which it has ruled:

Judges; F.G.

social

security schemes

families moving within the Community,

1. Article 13(2)(f) of Regulation No 1408/71 of the Council of 14
to
June 1971 on the application of
employed persons, to self-employed persons and to members of
their
in the version
updated by Council Regulation (EEC) No 2001/83 of 2 June
1983, as amended by Council Regulation (EEC) No 2195/91 of
25 June 1991, must be interpreted as meaning that a person
residing in a Member State and unemployed there after performing
his compulsory military service in another Member State is subject
to the legislation of the Member State of residence.

Article 71(1)(b)(ii) of Regulation No 1408/71, as amended,
must be interpreted as meaning that it
is a special provision
concerning the determination of the legislation applicable in regard
to unemployment benefits with the result that if the conditions
determining its application are met the applicable legislation is
that provided for in that provision.

It is for the referring court to determine whether in the main
proceedings
conditions governing application of Article
71(1)(b)(ii) are met.

the

If in the main proceedings the conditions governing the application
of Article 71(1)(b)(ii) of Regulation No 1408/71, as amended,
are satisfied, the legislation applicable to a person residing in a
Member State and unemployed there after performing his compul-
sory military service in another Member State would, under that
provision, also be the legislation of the Member State of residence.

2. A period of compulsory military service in another Member State
constitutes a ‘[period of employment] completed as an employed
person under the legislation of [that] other Member State’ for the
purposes of Article 67(1) of Regulation No 1408/71,
in the
version updated by Regulation No 2001/83, as amended by
Regulation No 2195/91, where, first, it is so defined or recog-
nised by the legislation of that other Member State or treated as
such and regarded by that legislation as a period equivalent to a
period of employment and where, second, the person concerned
was insured within the meaning of Article 1(a) of Regulation No
1408/71 during his military service.

In Case C-372/02: reference for a preliminary ruling under
Article 234 EC from the Bundessozialgericht (Germany), made
by decision of 15 August 2002, received at the Court on 16
October 2002, in the proceedings between Roberto Adanez-
Vega and Bundesanstalt für Arbeit – the Court (First Chamber),
composed of: P. Jann (Rapporteur), President of the Chamber,

The condition that ‘the person concerned should have completed
lastly … periods of insurance … in accordance with the provisions
of the legislation under which the benefits are claimed’ for the
purposes of Article 67(3) of Regulation No 1408/71, as
amended, precludes the obligation to aggregate periods of employ-
ment only where a period of insurance was completed in another
Member State after the last period of insurance completed under
the legislation under which the benefits are claimed.

22.1.2005

EN

Official Journal of the European Union

C 19/3

3. In circumstances such as those of the main proceedings, Article 3
of Regulation No 1408/71, in the version updated by Regulation
No 2001/83, as amended by Regulation No 2195/91, does not
preclude a competent institution, when examining entitlement to
unemployment benefit, from not taking into account,
in calcu-
lating periods of insurance completed, a period of compulsory mili-
tary service performed in another Member State.

(1) OJ C 7 of 11.1.2003.

JUDGMENT OF THE COURT

(Grand Chamber)

of 30 November 2004

1. Article 7(1) of First Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member States
relating to trade marks, as amended by the Agreement on the
European Economic Area of 2 May 1992, must be interpreted as
meaning that goods bearing a trade mark cannot be regarded as
having been put on the market in the European Economic Area
where the proprietor of the trade mark has imported them into the
European Economic Area with a view to selling them there or
where he has offered them for sale to consumers in the European
Economic Area,
in his own shops or those of an associated
company, without actually selling them.

2. In circumstances such as those of the main proceedings, the stipu-
lation, in a contract of sale concluded between the proprietor of the
trade mark and an operator established in the European Economic
Area, of a prohibition on reselling in the European Economic
Area does not mean that there is no putting on the market in the
European Economic Area within the meaning of Article 7(1) of
Directive 89/104, as amended by the Agreement on the European
Economic Area, and thus does not preclude the exhaustion of the
proprietor's exclusive rights in the event of resale in the European
Economic Area in breach of the prohibition.

in Case C-16/03 (reference for a preliminary ruling from
the Hovrätten över Skåne och Blekinge): Peak Holding AB
v Axolin-Elinor AB (1)

(1) OJ C 55 of 8.3.2003.

(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the rights conferred by a trade mark —
Putting on the market of the goods in the EEA by the
proprietor of the trade mark — Concept — Goods offered for
sale to consumers and then withdrawn — Sale to an operator
established in the EEA with the obligation to put the goods
on the market outside the EEA — Resale of the goods to
another operator established in the EEA — Marketing in the
EEA)

(2005/C 19/04)

(Language of the case: Swedish)

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

In Case C-16/03: reference for a preliminary ruling under
Article 234 EC from the Hovrätten över Skåne och Blekinge
(Sweden), made by decision of 19 December 2002, received at
the Court on 15 January 2003,
in the proceedings between
Peak Holding AB and Axolin-Elinor AB, formerly Handelskom-
paniet Factory Outlet i Löddeköpinge AB – the Court (Grand
Chamber), composed of: V. Skouris, President, P. Jann, C.W.A.
Timmermans, A. Rosas and R. Silva de Lapuerta, Presidents of
Chambers, C. Gulmann
Puissochet,
R. Schintgen and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl,
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 30 November 2004,
in
which it has ruled:

(Rapporteur),

J.-P.

JUDGMENT OF THE COURT

(Third Chamber)

of 2 December 2004

in Case C-42/03: Commission of the European Commu-
nities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations — Conserva-
tion and management of resources — Control measures for
fishing activities)

(2005/C 19/05)

(Language of the case: Spanish)

In Case C-42/03: Commission of the European Communities
(Agents: T. van Rijn and S. Pardo Quintillán) v Kingdom of
Spain (Agent: N. Díaz Abad) – ACTION under Article 226 EC
for failure to fulfil obligations, brought on 4 February 2003 –
the Court (Third Chamber), composed of: A. Rosas, President
of Chamber, J.-P. Puissochet (Rapporteur), S. von Bahr, J. Male-
novský and U. Lõhmus,
Judges; C. Stix-Hackl, Advocate
General; R. Grass, Registrar, gave a judgment on 2 December
2004, in which it: