Case C-48/05: Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.)
Date: 2005-04-02
Institutions: Court of Justice
Subjects: interpretation of the law, motor vehicle industry, toy industry, trade-mark law

2.4.2005

EN

Official Journal of the European Union

C 82/15

Action brought on 3 February 2005 by the Commission of
the European Communities against the Italian Republic

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

(Case C-44/05)

(2005/C 82/31)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 3 February
2005 by the Commission of the European Communities, repre-
sented by E. Traversa and M. Huttunen, acting as Agents, with
an address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by not having adopted the laws, regulations
and administrative provisions necessary to comply with
Directive 2002/30/EC (1) of the European Parliament and of
the Council of 26 March 2002 on the establishment of rules
and procedures with regard to the introduction of noise-
related operating restrictions at Community airports or, in
any case, by not having communicated such measures to
the Commission, the Italian Republic has failed to fulfil its
obligations under that directive;

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into
national law expired on 28 September 2003.

(1) OJ L 85 of 28 March 2002, p. 40.

Action brought on 7 February 2005 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-47/05)

(2005/C 82/32)

(Language of the case: Spanish)

Justice of

An action against the Kingdom of Spain was brought before
the Court of
the European Communities on 7
February 2005 by the Commission of the European Commu-
nities, represented by R. Lyal, Legal Adviser, and L. Escobar
Guerrero, of the Commission's legal service, with an address for
service in Luxembourg.

1. declare that, by having adopted and maintained in force, in
the matter of life insurance and pensions, a system under
which tax concessions (Article 48 of Law 40/1998) are
applicable solely to contributions paid under contracts
concluded with undertakings established in Spain but not to
those paid under contracts concluded with undertakings
formed in other Member States, the Kingdom of Spain has
failed to fulfil its obligations under Articles 39, 43, 49 and
56 of the Treaty establishing the European Community and
Articles 28, 31, 36 and 40 of the EEA Agreement;

2. order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The fact that tax treatment differs by reference to whether
pension plans are taken out with undertakings established in
Spain or with undertakings formed in other Member States is a
restriction on the fundamental freedoms laid down by the EC
Treaty (Articles 39, 43, 49 and 56 EC and Articles 28, 31, 36
and 40 of the EEA Agreement).

The requirement for establishment, in accordance with national
law, which Spanish fiscal
legislation imposes on pension
managers, constitutes, as well as discrimination restricting the
right of undertakings formed in the European Union or the
EEA to provide their services freely to persons resident in
Spain, a clear restriction on the freedom of movement of
workers and of capital and on the freedom of establishment.

Reference for a preliminary ruling from the Landgericht
Nürnberg-Fürth by order of that court of 28 January 2005
in Adam Opel AG v Autec AG (intervener in support of
the defendant: Deutscher Verband der Spielwaren-Indus-
trie e.V.)

(Case C-48/05)

(2005/C 82/33)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landgericht Nürnberg-Fürth
(Germany) of 28 January 2005, received at the Court Registry
on 8 February 2005, in the proceedings between Adam Opel
AG and Autec AG (intervener in support of the defendant:
Deutscher Verband der Spielwaren-Industrie e.V.) for a preli-
minary ruling on the following questions of the interpretation
of Article 5(l)(a) and Article 6(l)(b) of the First Directive of the
Council No 89/104/EC (1) of 21 December 1988 to approxi-
mate the laws of the Member States relating to trade marks:

C 82/16

EN

Official Journal of the European Union

2.4.2005

1. Does the use of a trade mark registered also for ‘toys’ consti-
tute use as a trade mark for the purposes of Article 5(1)(a)
of the Trade Mark Directive if the manufacturer of a toy
model car copies a real car in a reduced scale, including the
trade mark of the proprietor of the trade mark as applied to
the real car, and markets it?

2. If the answer to Question in 1 is in the affirmative: is the
type of use of the trade mark described in Question 1 an
indication of the kind or quality of the model car within the
meaning of Article 6(1)(а) of the Trade Mark Directive?

3. If the answer to Question 2 is in the affirmative:

In cases of this type what are the decisive criteria to be
applied in assessing whether the trade mark corresponds to
honest practices in industrial or commercial matters?

4. Is this in particular the case if the manufacturer of the
model car applies to the packaging, and to an accessory
required in order to use the model, a mark recognisable to
the trade as its own trade mark together with its company
name and the address of its seat?

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of the

European Communities in Case T-276/01;

— annul, through a declaration of inapplicability under Article
241 EC of point 82 of the ‘Community guidelines on State
aid for environmental protection’ of 2001, Commission
Decision 2001/829/EC, ECSC of 28 March 2001 (1),
in
which the aid of the autonomous Region of Friuli-Venezia
Giulia in favour of Ferriere Nord SpA for environmental
investment in a new production plant for electrowelded
wire mesh was considered incompatible with the common
market;

— order, pursuant to Article 235 and the second paragraph of
Article 288 EC, the Commission of the European Commu-
nities to pay compensation for harm suffered by Ferriere
Nord SpA owing to the unlawfulness of the abovemen-
tioned decision and the delay with which the aid unlawfully
denied will actually be granted to Ferriere Nord SpA,
together with interest and an amount to take account of
monetary revaluation;

(1) OJ 1989 L 40, p. 1.

— order the Commission to pay the applicant's costs and legal

fees, both at first instance and in these proceedings.

Pleas in law and main arguments:

Appeal brought on 7 February 2005 (fax 2 February 2005)
by Ferriere Nord SpA against the judgment delivered on
18 November 2004 by the Court of First Instance (Fourth
Chamber, Extended Composition)
in Case T-176/01
between Ferriere Nord SpA, supported by the Italian
Republic, and the Commission of the European Commu-
nities

The applicant claims that the Court of First Instance erred in:

— its description of the legal basis of the notification of the
contested aid and therefore did not consider that the initia-
tion of the formal examination procedure of 3 June 1999
was unlawful;

(Case C-49/05 P)

(2005/C 82/34)

(Language of the case: Italian)

An appeal against the judgment of the Court of First Instance
of
the European Communities (Fourth Chamber, Extended
Composition) of 18 November 2004 in Case T-176/01
between Ferriere Nord, supported by the Italian Republic, and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on 7
February 2005 by Ferriere Nord SpA, represented by W. Viscar-
dini and G. Donà, avvocati.

— considering that the procedural time limits for opening and
examination procedure had been

formal

closing the
observed;

— finding that there had been no infringement of the rights of
the ‘parties concerned’, even though those parties had not
been able to submit observations in the light of the 2001
guidelines on State aid for environmental protection (which
had come into force in the meantime and on which the
Commission based its final measure in the formal examina-
tion procedure), while all the preparatory enquiries had
been conducted on the basis of the ‘Community guidelines
on State aid for environmental protection’ (2) of 1994;

— finding that the Commission had not infringed the legiti-
mate procedural expectations of Ferriere Nord, even though
it had based its decision on certain documents which were
not submitted by Ferriere Nord only because they had
never been requested by the Commission itself;