Case C-27/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 5 January 2005 in Elfering Export GmbH v Hauptzollamt Hamburg-Jonas
Date: 2005-04-02
Institutions: Court of Justice
Subjects: export refund, form, interpretation of the law, originating product

C 82/10

EN

Official Journal of the European Union

2.4.2005

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

1. declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2000/34/EC of the European Parliament and of the
Council of 22 June 2000 amending Council Directive
93/104/EC concerning certain aspects of the organisation of
working time to cover sectors and activities excluded from
that directive (1) or, in any event, by failing to communicate
those provisions to the Commission, the Grand Duchy of
Luxembourg has failed to fulfil its obligations under Article
2(1) of that directive;

2. order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition of the Directive into national law
expired on 1 August 2003.

(1) OJ L 195, 01.08.2000, p. 41.

Reference for a preliminary ruling from the Landesgericht
Korneuburg (Austria) by order of that court of 13 January
2005 in Plato Plastik Robert Frank GmbH v CAROPACK
Handels GmbH

(Case C-26/05)

(2005/C 82/21)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landesgericht Korneuburg
(Austria) of 13 January 2005,
(Regional Court, Korneuburg)
received at the Court Registry on 27 January 2005, for a preli-
minary ruling in the proceedings between Plato Plastik Robert
Frank GmbH and CAROPACK Handels GmbH on the following
questions:

ging, and does this also apply to carrier bags? Is the
producer
(supplier) of products described in the first
sentence of Article 3(1), namely products used for the
containment, protection, handling, delivery and presentation
of goods, and non-returnable items used for the same
purposes, therefore a producer (supplier) of packaging mate-
rials (packaging products) and not a producer of sales packa-
ging, grouped packaging or transport packaging (packaging
producer; compare the corresponding terms in Article 3(11)
of the directive)?’

2. First additional question, should the principal question be
answered in the affirmative: ‘Is the producer of a carrier bag
accordingly not a producer of sales packaging, grouped
packaging or transport packaging but a producer of packa-
ging materials (packaging products)?’

3. Second additional question, should the first additional ques-
tion be answered in the affirmative: ‘Is it contrary to Com-
munity law, in particular to the principle of equality, to the
prohibition on objectively unjustified restrictions on the
freedom to carry on a business and to the prohibition on
creating distortions of competition, for the legislation of a
Member State to provide, on pain of a penalty, that the
producer of packaging materials, particularly of carrier bags,
must either accept their return or participate in a collection
and recovery system in this regard, unless a party further
down the distribution chain takes over that obligation and
provides the producer of the packaging materials with a
legally valid declaration on the matter?’

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 5 January 2005 in
Elfering Export GmbH v Hauptzollamt Hamburg-Jonas

(Case C-27/05)

(2005/C 82/22)

(Language of the case: German)

1. Principal question: ‘For the purposes of European Parliament
and Council Directive 94/62/EC of 20 December 1994, is
the producer of sales packaging, grouped packaging or
transport packaging, namely the packaging producer, always
the party which, in the course of the exercise of its profes-
sional activity, brings goods, or has goods brought, directly
or indirectly together with the product intended as packa-

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg
(Finance Court, Hamburg)
(Germany) of 5 January 2005,
received at the Court Registry on 27 January 2005, for a preli-
minary ruling in the proceedings between Elfering Export
GmbH and Hauptzollamt Hamburg-Jonas on the following
question:

2.4.2005

EN

Official Journal of the European Union

C 82/11

Is the declaration made in an export declaration that
the
product in respect of which a refund is sought is of Com-
munity origin information to which a penalty may attach
under Article 51(2) of Regulation (EC) No 800/1999 (1)
in
conjunction with Article 5(4) thereof?

(1) OJ 1999 L 102, p. 11.

Appeal brought on 28 January 2005 (fax: 25 January 2005)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 10 November 2004 by the Fourth Chamber of the
Court of First Instance in Case T-164/02 between Kaul
GmbH and Office for Harmonisation in the Internal Market
(other party to the proceedings before the Board of
Appeal of OHIM: Bayer AG)

(Case C-29/05 P)

(2005/C 82/23)

(Language of the case: German)

An appeal against the judgment delivered on 10 November
2004 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-164/02 between Kaul
GmbH and Office for Harmonisation in the Internal Market (Trade
Marks and Designs) was brought before the Court of Justice of
the European Communities on 28 January 2005 (fax: 25
January 2005) by the Office for Harmonisation in the Internal
Market (Trade Marks and Designs), represented by Alexander
the Office, and Gregor
von Mühlendahl, Vice President of
Schneider, a member of the Industrial Property Litigation Unit,
the other party to the proceedings before the Board of Appeal
of OHIM having been Bayer AG.

The appellant claims that the Court should:

1. set aside the contested judgment;

Pleas in law and main arguments

1. The Court of First

Instance infringed Article 43(2) of
Council Regulation (EC) No 40/94 of 20 December 1993
on the Community trade mark (OJ 1994 L 11, p. 1) (‘the
CTMR’) and Rules 16(3) and 20(2) of Commission Regu-
lation (EC) No 2868/95 of 13 December 1995 imple-
menting Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ 1995 L 303, p. 1) by obliging the
Board of Appeal of the Office, by virtue of continuity in
terms of functions, to take into consideration new submis-
sions of fact and new evidence in opposition proceedings,
even though the party to the proceedings did not lodge
those submissions or submit that evidence within the time-
limit set by the Opposition Division. The obligation to
examine evidence submitted for the first time before the
Board of Appeal, which the Court of First Instance infers in
inter partes proceedings from continuity in terms of func-
tions, has no basis in the provisions of the CTMR or the
implementing regulation.

2. The Court of First Instance infringed Article 74(2) of the
CTMR by requiring the Board of Appeal to have regard to
new submissions of fact and new evidence even though the
time-limits applicable to such submissions are ‘mandatory
time-limits’ in proceedings before the Opposition Division
and the opposing party did not lodge those submissions or
submit that evidence within the time-limit set by the Oppo-
sition Division.

3. The Court of First Instance also infringed Article 74(2) of
the CTMR by allowing application of
that provision in
appeal proceedings only where new submissions are lodged
or new evidence submitted after the expiry of the time-limit
for substantiating the appeal.

Action brought on 28 January 2005 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-30/05)

(2005/C 82/24)

(Language of the case: French)

2. refer the case back to the Court of First Instance for a deci-

sion on the additional pleas in law;

3. order the other parties to the proceedings to pay the costs

of the appeal proceedings.

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 28 January 2005 by the Commission of the European
Communities, represented by C.F. Durand and F. Simonetti,
acting as Agents, with an address for service in Luxembourg.