Case C-137/05: Action brought on 24 March 2005 by United Kingdom of Great Britain and Northern Ireland against Council of the European Union
Date: 2005-05-28
Institutions: Court of Justice
Subjects: Council of the European Union, Treaty of Amsterdam, United Kingdom, action for annulment (EU), biometrics, passport

C 132/16

EN

Official Journal of the European Union

28.5.2005

Pleas in law and main arguments

The applicant claims that the Court should:

On the basis of numerous documents, the Commission has
learned of the large number of tips in Italian territory operating
illegally and without control by the public authorities, some of
which contain hazardous waste,

The Commission considers that while it tolerates the presence
of such tips, the Italian Republic is infringing its obligations
under Articles 4, 8 and 9 of Council Directive 75/442/EEC on
waste, as amended by Directive 91/156/EEC, and under Articles
2(1) of Council Directive 912/689/EEC on hazardous waste.

As regards the tips existing as at 16 July 2991, with permits or
already functioning by that date, the lack of information on the
reorganisation plans which the managers of such tips should
have submitted by 16 July 2002 prompts the Commission to
such reorganisation plans and the relevant
consider
authorisation measures and measures for the possible closure
of tips not meeting the requirements of the directive are non-
existent.

that

The Commission considers therefore that the Italian Republic
has failed to fulfil its obligations under Article 14(a), (b) and (c)
of Council Directive 1999/31/EC on the landfill of waste.

(1) OJ L 194 of 25.7.1975, p. 39.
(2) OJ L 78 of 26.3.1991, p. 32.
(3) OJ L 377 of 31.12.1991, p. 20.
(4) OJ L 182 of 16.7.1999, p. 1.

Action brought on 24 March 2005 by United Kingdom of
Great Britain and Northern Ireland against Council of the
European Union

(Case C-137/05)

(2005/C 132/30)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 24 March 2005 by United Kingdom of Great Britain
and Northern Ireland, represented by C.
Jackson, acting as
Agent, with an address for service in Luxembourg.

1. annul Council Regulation (EC) No 2252/2004 of 13
December 2004 on standards for security features and
biometrics in passports and travel documents issued by
Member States (1);

2. determine, pursuant to Article 231 EC, that, following the
annulment of the Passports Regulation, and pending the
adoption of new legislation in this matter, the provisions of
the Passports Regulation should remain effective, except in
so far as they have the effect of excluding the United
Kingdom from participating in the application of the Pass-
port Regulation;

3. order the Council of the European Union to pay the costs.

Pleas in law and main arguments

1. The United Kingdom was denied the right to take part in
the adoption of Council Regulation (EC) No 2252/2004 of
13 December 2004 on standards for security features and
biometrics in passports and travel documents issued by
Member States (the Passport Regulation) despite having
given notice of its wish to do so pursuant to Article 5(1) of
the Protocol integrating the Schengen acquis into the frame-
work of the European Union (the Schengen Protocol) and to
Article 3(1) of the Protocol on the position of the United
Kingdom and Ireland. The annulment of the Passports Regu-
lation is sought on the grounds that the exclusion of the
United Kingdom from its adoption entails the infringement
of an essential procedural requirement and/or the infringe-
ment of the Treaty, within the meaning of Article 230,
second paragraph, EC.

2. The main contention of the United Kingdom is that, in so
excluding it from the adoption of the Passports Regulation,
the Council acted on the basis of an erroneous interpreta-
tion of the relationship between Article 5 and Article 4 of
the Schengen Protocol. It is contended more particularly as
follows:

(a) The Council's interpretation, according to which the
the
right of participation conferred by Article 5 of
Schengen Protocol applies only to measures building on
provisions of the Schengen acquis in which the United
Kingdom participates pursuant to a Council decision
adopted on the basis of Article 4, is contradicted by the
structure and language of those Articles, by the very
nature of the Article 5 mechanism, and by the Declara-
tion on Article 5 that was annexed to the Final Act of
the Treaty of Amsterdam.

(b) The Council's interpretation of Article 5 of the Schengen
Protocol is not required to enable the ‘without prejudice’
rule in Article 7 of the Protocol on the Position of the
United Kingdom and Ireland to have useful effect. Nor is
such an interpretation required to preserve the integrity
of the Schengen acquis.
Indeed, as a means of safe-
guarding the acquis, its adverse impact on the United
Kingdom would be grossly disproportionate.

28.5.2005

EN

Official Journal of the European Union

C 132/17

(c) Given the broad and loose conception of measures
building on the Schengen acquis which the Council
employs in its practice, the mechanism of Article 5 of
the Schengen Protocol, as interpreted by the Council,
would be liable to function in a way that violates the
principle of legal certainty and the fundamental princi-
ples governing enhanced cooperation.

3. In the alternative, the United Kingdom contends that, if the
Council's interpretation of the relationship between Article
5 and Article 4 of the Schengen Protocol were correct, this
would necessarily entail taking a narrow view of the notion
of a measure that builds upon the Schengen acquis within
the meaning of Article 5, as a measure inextricably
connected with the acquis; and the Passports Regulation is
not such a measure.

(1) OJ L 385, p. 1.

Reference for a preliminary ruling from the Cour de
Cassation (Belgium) by judgment of that court of 17
March 2005 in Levi Strauss & Co v Casucci Spa

(Case C-145/05)

(2005/C 132/31)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of
the Cour de Cassation
(Belgium) of 17 March 2005, received at the Court Registry on
31 March 2005, for a preliminary ruling in the proceedings
between Levi Strauss & Co and Casucci Spa on the following
questions:

1. For the purposes of determining the scope of protection of
a trade mark which has been lawfully acquired on the basis
of its distinctive character, in accordance with Article 5(1)
of First Council Directive 89/104/EEC of 21 December
1988 to approximate the laws of the Member States relating
to trade marks (1), must the court take into account the
perception of the public concerned at the time when use
commenced of the trade mark or similar sign which alleg-
edly infringes the trade mark?

2. If not, may the court take into account the perception of
the public concerned at any time after commencement of
the use complained of? Is it entitled in particular to take
into account the perception of the public concerned at the
time it delivers its ruling?

3. Where, in application of the criterion referred to in the first
question,
the trade mark has been
infringed, is it entitled, as a general rule, to order cessation
of the infringing use of the sign?

finds that

the court

4. Can the position be different if the claimant's trade mark
has lost its distinctive character wholly or in part after
commencement of the infringing use, but solely where that
loss is due wholly or in part to an act or omission by the
proprietor of that trade mark?

(1) OJ L 40, 11.02.1989, p. 1.

Reference for a preliminary ruling from the Cour d'appel
de Paris by judgment of 23 March 2005 in Harold Price v
Conseil des ventes volontaires de meubles aux enchères
publiques

(Case C-149/05)

(2005/C 132/32)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Paris of
23 March 2005, received at the Court Registry on 4 April
2005, for a preliminary ruling in the proceedings pending
between Harold Price and the Conseil des ventes volontaires de
meubles aux enchères publiques on the following questions:

and

1. Does Council Directive 92/51/EEC of 18 June 1992 on a
second general system for the recognition of professional
education
supplement Directive
89/48/EEC (1) apply to the activity of director of voluntary
sales of chattels by public auction which is governed by
Articles L.321-1 to L.321-3, L.321-8 and L.321-9 of the
Code de commerce?

training

to

2. If so, can the host Member State avail itself of the deroga-
tion in the second indent of Article 4(1)(b) as provided for
by the sixth (2) indent of Article 4(1)(b) of the Directive?

(1) OJ L 209 of 24.07.1992, p. 25.
(2) Tr. : Scil. the third indent.