Case C-511/04: Action brought on 14 December 2004 by the Commission of the European Communities against the Portuguese Republic
Date: 2005-02-19
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, driving licence, road safety

19.2.2005

EN

Official Journal of the European Union

C 45/17

In the view of the Commission, the following were not fully
and/or not correctly implemented for the territory of individual
federal Länder: the provisions concerning the scope of Directive
79/409 (Article 1(1) and (2) of the Directive); the general rules
governing the protection of bird species (Article 5 of the Direc-
tive); the ban on trade (Article 6(1) of the Directive); the provi-
sions governing hunting of
the species listed in Annex II
(Article 7(1) of the Directive); the rules governing the preserva-
tion of populations (Article 7(4) of the Directive); the rules
governing prohibited methods and equipment for hunting and
capturing wild birds (Article 8 of the Directive); the criteria
governing derogations from Articles 5 to 8 (Article 9(1) and (2)
of the Directive); and the provisions on the introduction of
wild bird species (Article 11 of the Directive).

(1) OJ 1979 L 103, p. 1.

Action brought on 8 December 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-508/04)

(2005/C 45/31)

(Language of the case: German)

Justice of

An action against the Republic of Austria was brought before
the European Communities on 8
the Court of
December 2004, by the Commission of
the European
Communities, represented by M. Van Beek and B. Schima
acting as Agents, assisted by M. Lang, lawyer, with an address
for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. Declare that the Republic of Austria has failed to fulfil its
obligation to transpose, correctly and completely, Council
Directive 92/43/EEC of 21 May 1992 (1) on the conserva-
tion of natural habitats and of wild fauna and flora by not
transposing, correctly and completely, Articles 1, 6(1) to (4),
7, 11, 12, 13, 15, 16(1) and 22(b) of that directive into
Austrian law.

2. Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

means of the relevant legal provisions of the provinces of
Carinthia, Niederösterreich, Oberösterreich, Salzburg, Steier-
mark, Tyrol and Vorarlberg notified to the Commission or to
its knowledge adopted.

In the Commission's view, the following provisions concerning
federal provinces have not been completely or
individual
correctly transposed: Definitions (Article 1 of the directive);
necessary conservation measures (Article 6(1)); prohibition on
deterioration (Article 6(2)); plans or projects which could have
serious implications for special areas of conservation (Article
6(3) and (4)); in regard to the system of protection under the
‘wild birds’ Directive 79/409/EEC (Article 7); surveillance of
conservation status (Article 11); system of protection for
animal species listed in Annex 1V(a) (Article 12); system of
protection for plant species listed in Annex IV(b) (Article 13);
prohibited means of capture and killing (Article 15); criteria for
derogation from Articles 12 to 15 (Article 16(1)); deliberate
introduction of non-native species (Article 22(b)).

(1) OJ 1992 L 206, p. 7.

Action brought on 14 December 2004 by the Commission
the Portuguese
of

the European Communities against

Republic

(Case C-511/04)

(2005/C 45/32)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the Court of
the European Communities on 14
December 2004 by the Commission of the European Commu-
nities, represented by R. Vidal Puig, acting as Agent, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt the laws, regulations and
administrative provisions needed to implement Commission
Directive 2000/56/EC (1) of 14 September 2000, which
amends Council Directive 91/439/EEC on driving licences,
and in any event by failing to give notice thereof to the
Commission, the Portuguese Republic has failed to fulfil its
obligations under that directive;

By this application the Commission is challenging the defective
transposition into Austrian law of Directive 92/43/EEC by

— Order the Portuguese Republic to pay the costs.

C 45/18

EN

Official Journal of the European Union

19.2.2005

Pleas in law and main arguments

The period for transposition of Directive 2000/56/EC expired
on 30 September 2003.

(1) OJ L 237 of 21.9.2000, p. 45.

Appeal brought on 15 December 2004 by Vitakraft-Werke
Wührmann & Sohn GmbH & Co. KG against the judgment
delivered on 6 October 2004 by the Second Chamber of
the Court of First Instance of the European Communities
in Case T-356/02 between Vitakraft-Werke Wührmann &
Sohn GmbH & Co. KG and the Office for Harmonisation
(Trade Marks and Designs),
in the Internal Market

supported by Krafft SA

(Case C-512/04 P)

(2005/C 45/33)

(Language of the case: German)

An appeal against the judgment delivered on 6 October 2004
by the Second Chamber of the Court of First Instance of the
European Communities in Case T-356/02 between Vitakraft-
Werke Wührmann & Sohn GmbH & Co. KG and the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs), supported by Krafft SA, was brought before the Court
of Justice of the European Communities on 15 December 2004
by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG,
represented by Dr Ulrich Sander, Eisenführ, Speiser & Partner,
Martinistrasse 24, D-28195 Bremen.

The appellant claims that the Court should:

Set aside the judgment delivered on 6 October 2004 by the
Court of First Instance (Second Chamber) in Case T-356/02, 1
in so far as the decision was to the appellant's detriment.

Pleas and main arguments

The question to be decided in the present case is that of the
likelihood of confusion within the meaning of Article 8(1)(b) of
Regulation No 40/94 of 20 December 1993 on the Com-
munity trade mark. The Court of First Instance found that there
was a likelihood of confusion on the part of the Spanish public
between the marks ‘KRAFFT’ (Spanish national marks) cited in
opposition and ‘VITAKRAFT’,
the Community trade mark
applied for. The Court of First Instance expressly based its deci-

in the appellant's view,

sion on its own earlier decision in Case T-6/01 Matratzen
Concord v OHIM – Hukla Germany (MATRATZEN) (upheld by
order of the Court of Justice on 28 April 2004 in Case 3/03 P).
that case concerned an
However,
entirely different situation and cannot be compared to the
present case. The Matratzen case concerned a (conflicting) mark
composed of three separate words, ‘Matratzen Markt Concord’,
which in the view of the Court of First Instance was likely to
be confused (also by the Spanish public) with the Spanish
national mark ‘MATRATZEN’, the distinguishing element in the
case being that the earlier Spanish mark ‘MATRATZEN’ was
registered for
the German word
‘Matratzen’ (mattresses) was therefore monopolised in Spain as
a mark, because the German clearly was not perceived as
descriptive by the Spanish consumer. According to the appel-
lant, however, such trade mark rights should, in a harmonised
Europe, be granted only restricted protection in opposition
proceedings against an application for a Community trade
mark and, therefore, the appellant, first of all, fundmentally
challenges the bias of the approach taken in the ‘MATRATZEN’
decision.

‘mattresses’;

the goods

Furthermore, the appellant sets out the differences between the
marks cited in opposition in the present case and those in the
‘MATRATZEN’ case, since in the case of the application for the
Community trade mark ‘VITAKRAFT’ the Spanish consumer
would have to separate, mentally or in terms of the typography
or of the sound, the prefix ‘VITA’ from the whole mark ‘VITAK-
RAFT’ and there is no clear reason why this should be done.
Finally, the appellant considers the problems for the free move-
ment of goods which might conceivably arise if the bias of the
‘MATRATZEN’ decision is not properly adjusted.

Removal from the register of Case C-410/02 (1)

(2005/C 45/34)

(Language of the case: English)

By order of 25 October 2004 the President of the Court of
Justice of the European Communities has ordered the removal
from the register of Case C-410/02: Commission of the Euro-
pean Communities v Ireland.

(1) OJ C 7 of 11.1.03.