Case C-110/05: Action brought on 4 March 2005 by the Commission of the European Communities against the Italian Republic
Date: 2005-05-14
Institutions: Court of Justice
Subjects: European Commission, Italy, action for annulment (EU), commercial vehicle, free movement of goods, import restriction, infringement of EU law

C 115/12

EN

Official Journal of the European Union

14.5.2005

Do Article 13A(1)(b) and (2) of the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes allow for the
tax exemption for medical laboratory tests ordered by general
practitioners to be made subject to the conditions specified in
those provisions, even where medical care by such practitioners
is exempt from taxation in any event?

Reference for a preliminary ruling from the Gerechtshof
te 's-Gravenhage by order of that court of 27 January
2005 in Bovemij Verzekeringen N.V. v Benelux-Merken-
bureau

(Case C-108/05)

(2005/C 115/22)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Gerechtshof te 's-Grave-
nhage (Netherlands) of 27 January 2005, received at the Court
Registry on 4 March 2005, for a preliminary ruling in the
proceedings between Bovemij Verzekeringen N.V. and Benelux-
Merkenbureau on the following questions:

(1) [Omissis: question submitted to the Benelux Court of

Justice]

(2 Must Article 3(3) of

the Directive (1) be interpreted as
meaning that in order to acquire distinctive character (in
the present case through a Benelux trade mark) as a result
of use, as referred to in that provision, it is necessary that
the sign be regarded as a trade mark, before the date of
application, by the relevant public throughout the Benelux
territory and,
in Belgium, Netherlands and
Luxembourg?

therefore,

If the answer to question 2 is in the negative:

(3) Is the condition for registration laid down in Article 3(3) of
the Directive satisfied, for the purposes of that provision, if
the sign, as result of the use made of it, is regarded as a
trade mark by the relevant section of
the public in a
substantial part of
the Benelux territory and can this
substantial part be, for example, the Netherlands alone?

sign — consisting of one or more words of an official
language in the territory of a Member State (or, as in the
case in point, the Benelux territory) — is it necessary to
take into account the language regions within that terri-
tory?

For registration as a mark, should the other requirements
for registration be satisfied, is it sufficient if/required that
the sign be regarded as a trade mark by the relevant section
of the public in a substantial part of the language region of
the Member State (or, as in the case in point, of
the
Benelux territory)
language is an official
in which that
language?

(1) Council Directive 89/104/EEC of 21.12.1988 (OJ 1989, L 40, p. 1).

Action brought on 4 March 2005 by the Commission of
the European Communities against the Italian Republic

(Case C-110/05)

(2005/C 115/23)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 March
2005 by the Commission of the European Communities, repre-
sented by D. Recchia and F. Amato, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that by prohibiting the towing of trailers by motor
vehicles the Italian Republic has failed to fulfil its obligations
under Article 28 EC;

2. order the Italian Republic to pay the costs incurred by the

Commission of the European Communities.

Pleas in law and main arguments

(4) When assessing distinctive character acquired through use,
within the meaning of Article 3(3) of the Directive, of a

Under Article 56 of the Codice della strada (Italian highway
code) the towing of trailers by any motor vehicle other than a
tractor unit is prohibited in Italy.

14.5.2005

EN

Official Journal of the European Union

C 115/13

According to the Commission there can be no doubt that the
effect of that prohibition is to restrict the use of trailers lawfully
produced and sold in Members States where there is no such
prohibition, thereby establishing an obstacle to their importa-
tion and sale in Italy.

Pleas in law and main arguments:

Italian
Consequently,
Republic has failed to fulfil its obligations under Article 28 EC.

the Commission submits

that

the

Appeal brought on 4 March 2005 by European Federation
for Cosmetic Ingredients (EFfCI) against the order made
on 10 December 2004 by the Third Chamber of the Court
of First Instance of the European Communities in Case T-
196/03 between European Federation for Cosmetic Ingre-
dients (EFfCI) and European Parliament and Council of the
European Union

(Case C-113/05 P)

(2005/C 115/24)

(Language of the case: English)

An appeal against the order made on 10 December 2004 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-196/03 (1) between European
Federation for Cosmetic Ingredients
(EFfCI) and European
Parliament and Council of the European Union, was brought
before the Court of Justice of the European Communities on 4
March 2005 by European Federation for Cosmetic Ingredients
(EFfCI), established in Brussels (Belgium), represented by K. Van
Maldegem and C. Mereu, lawyers.

The Appellant claims that the Court should:

— declare the present appeal admissible and well-founded;

— set aside the order of the Court of First Instance of 10

December 2004 in Case T-196/03;

— declare the Appellant's requests in Case T-196/03 admis-

sible;

— rule on the merits or, in the alternative, refer the case to

the Court of First Instance to rule on the merits; and

— order the European Parliament and the Council of the Euro-
pean Union to bear all the costs and expenses of both
proceedings.

in the alternative,

1. The Appellant challenges paragraph 16 of the contested
order, which rejects his request to examine the substance
before ruling on admissibility or,
to
reserve any decision until judgment in the main proceed-
ings. The Appellant submits that this rejection is unlawful
because the Court of First Instance misinterprets Article
114(4) of the Rules of Procedure and infringes the principle
of effectiveness and the duty to state reasons. The Court of
First Instance should have interpreted Article 114(4) of the
Rules of Procedure broadly and having due regard to the
circumstances of the case in accordance with the legal prin-
ciple of effectiveness. The Appellant also claims that the
Court of First Instance has infringed its duty to state reasons
by not giving further explanations for the rejection other
than that ‘it has sufficient information from the documents in the
file to give a decision on the applications’.

2. The Appellant submits that the Court of First Instance has
erred in law by dismissing the Appellant's submissions and
concluding that:

(a) the anticompetitive effects produced by the contested
measure on the Appellant do not distinguish him from
other undertakings. The Appellant submits that other
undertakings which do not supply the cosmetics sector,
or which supply the cosmetics sector only and do not
test their ingredients on animals or do not use CMR
substances are in a different situation from that of the
Appellant. The Appellant further submits that the Court
of First Instance misinterprets the rationale stemming
from the Extramet case.

(b) the Appellant did not refer to any binding provision
superior to the contested measure which might have
compelled the Parliament and the Council to take into
account the negative effects of the contested measure:
the Appellant submits that Article 3(g) EC constitutes a
binding provision compelling the Parliament and the
Council
to ensure that competition in the internal
market is not distorted.

such that

(c) the Appellant's patents are not as

the
contested measure makes their commercial use immedi-
ately and definitively unlawful and, by consequence,
make the Appellant
‘individually concerned’ by the
contested measure. The Appellant submits that the fact
that the contested measure expropriates him from his
patented (exclusive)
right makes him individually
concerned in accordance with the Codorniú case.