Case C-125/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 15 March 2005 in VW-Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S
Date: 2005-06-11
Institutions: Court of Justice
Subjects: exclusive distribution agreement, interpretation of the law, termination of a contract

11.6.2005

EN

Official Journal of the European Union

C 143/17

Pleas in law and main arguments

For the reasons set out above, the contested decision is thus
based on an infringement of Article 7(1)(c) of Regulation No
40/94 and must therefore be set aside.

The Office for Harmonisation in the Internal Market (Trade
Marks and Designs) submits the following grounds of appeal
against the above-mentioned judgment:

(1) OJ C 69, 19.03.2005, p. 14.

As a result of the considerations set out in paragraphs 35 and
36 of the judgment under appeal, the Court of First Instance
infringed Article 7(1)(c) of Regulation No 40/94, in so far as it
deemed the designation ‘EURO’ to be an indication of the
geographical origin of the goods or services, but at the same
time ruled that it could only be excluded from registration as a
Community trade mark if the geographical origin which is
designated by the mark is an ‘essential’ characteristic for the
relevant public. This contradicts the clear wording of
that
article, which excludes from registration indications designating
geographical origin without any further qualification. It also
follows from Case C-363/99 Koninklijke KPN Nederland NV v
Benelux-Merkenbureau [2004] ECR II-0000 that all signs or indi-
cations which describe the characteristics of goods or services
applied for are to be excluded from registration, irrespective of
whether those characteristics are ‘essential’.

Reference for a preliminary ruling from the Østre Land-
sret by order of that court of 15 March 2005 in VW-Audi
Forhandlerforeningen, acting for Vulcan Silkeborg A/S v
Skandinavisk Motor Co. A/S

(Case C-125/05)

(2005/C 143/25)

(Language of the case: Danish)

the Court of First

the judgment under appeal,

As a result of the considerations set out in paragraphs 36 to 43
Instance
of
infringed Article 7(1)(c) of Regulation No 40/94, in so far as it
deemed the designation ‘PREMIUM’
to be an indication of
quality, but at the same time refused to apply that provision to
that designation. Article 7(1)(c) of Regulation No 40/94
excludes from registration indications of value without any
further qualification, since every competitor of the applicant
should be entitled to use indications of value without being
adversely affected by trademark rights of third parties to such
indications. The Court of First Instance's argument (paragraph
39) that designations such as ‘PREMIUM’ fall to be assessed
(only) under Article 7(1)(b) of Regulation No 40/94 is mistaken
in this case. Since the designation ‘PREMIUM’ already falls
within Article 7(1)(c) of Regulation No 40/94 as an indication
of quality, there is no need to have further recourse to Article
7(1)(b) of the Regulation.

is established that

According to the principles laid down in judgments of the
Court of Justice, which are referred to in paragraph 44 of the
judgment under appeal, descriptive elements of a compound
trade mark are also descriptive when considered as a whole,
unless it
the overall designation, when
considered as a whole, has a meaning other than that of its
individual components. It is obvious in this case that the desig-
nation ‘EUROPREMIUM’ — a combination of the two elements
‘EURO’ and ‘PREMIUM’ which is formed according to the rules
of common language usage — does not indicate anything in
this connection other than that the goods and services applied
for are of European origin and of particular quality.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Østre Landsret (Denmark)
of 15 March 2005, received at the Court Registry on 17 March
2005, for a preliminary ruling in the proceedings between VW-
Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S
and Skandinavisk Motor Co. A/S on the following questions:

1. Is Article 5(3) of Commission Regulation (EC) No
1475/95 (1) of 28 June 1995 on the application of Article
85(3) of the Treaty to certain categories of motor vehicle
distribution and servicing agreements (‘Group Exemption
Regulation No 1475/95’) to be interpreted as meaning that
reasons must be stated for a supplier's termination of an
agreement with a dealer on one year's notice which go
beyond the supplier's reference to that provision?

2. If Question 1 is answered in the affirmative:

What requirement may be placed under Community law
on the content of such a statement of reasons and when
must such a statement be provided?

3. What is the consequence of not providing a proper or

timely statement of reasons?

C 143/18

EN

Official Journal of the European Union

11.6.2005

4. Is Article 5(3) of Group Exemption Regulation No
1475/95 to be interpreted as requiring that the termina-
tion of an agreement with a dealer on one year's notice
must be effected on the basis of a reorganisation plan
already drawn up by the supplier?

— for the supplier to be able to terminate the agreement
on one year's notice under that provision — can be satis-
fied simply on the grounds that the implementation of
Group Exemption Regulation No 1400/2002 in itself
could have necessitated a radical reorganisation of
the
supplier's dealer network?

5. If Question 4 is answered in the affirmative:

What requirement can be placed under Community law on
the content and form of a reorganisation plan drawn up
by the supplier and when must the reorganisation plan be
submitted?

6. If the answer to Question 4 is in the affirmative:

Must the supplier inform the dealer whose contract has
been terminated of the content of the reorganisation plan,
and when and in what form must notification to the dealer
be effected in a particular case?

7. If the answer to Question 4 is in the affirmative:

What is the consequence of a reorganisation plan not
fulfilling the requirement which may be placed on the
form and content of such a plan?

‘… det er nødvendigt at

8. According to the Danish version of Article 5(3) of Group
Exemption Regulation No 1475/95, the supplier's termina-
tion of an agreement with a dealer on one year's notice
presupposes that
foretage en
gennemgribende reorganisering af hele forhandlernettet
eller en del heraf …’ (it is necessary to reorganise radically
the whole or part of the network). The word ‘necessary’
appears in all the language versions of Group Exemption
Regulation No 1475/95 but the word ‘gennemgribende’
(radically) appears only in the Danish version.

In this context:

What requirement may be placed on the nature of the
reorganisation so that the supplier is able to terminate the
dealer's contract on one year's notice under Article 5(3) of
Group Exemption Regulation No 1475/95?

9. In assessing whether the conditions — for the supplier to
be able to terminate the agreement on one year's notice
under Article 5(3) of Group Exemption Regulation No
is it of importance what the
1475/95 — are satisfied,
economic consequences would be for the supplier if it had
terminated the dealer's contract on two years' notice?

10. Who bears the burden of proving that the conditions for
the supplier being able to terminate the agreement on one
year's notice under Article 5(3) of Group Exemption Regu-
lation No 1475/95 are satisfied, and how can such a
burden of proof be lifted?

11. Is Article 5(3) of Group Exemption Regulation No
1475/95 to be interpreted as meaning that the conditions

(1) OJ L 145 of 29.6.1995, p. 25.

Action brought on 21 March 2005 by the Commission of
the European Communities against the United Kingdom of
Great Britain and Northern Ireland

(Case C-127/05)

(2005/C 143/26)

(Language of the case: English)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 21 March 2005 by the Commission
of the European Communities, represented by M.-J. Jonczy and
N. Yerrell, of its Legal Service.

The Commission claims that the Court should:

1. declare that

in restricting the duty upon employers to
ensure the safety and health of workers in every aspect
related to the work to a duty to do this ‘so far as is reason-
ably practicable’, the United Kingdom has failed to fulfil its
obligations under Articles 5(1) and 5(4) of Council Directive
89/391/EEC of 12th
June 1989 on the introduction of
measures to encourage improvements in the safety and
health of workers at work (1);

2. order the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

Pleas in law and main arguments

The Commission's complaint is based upon Section 2(1) of the
Health and Safety at Work Act 1974 which states that it shall
be the duty of every employer to ensure the health, safety and
welfare of all his employees at work ‘so far as is reasonable prac-
ticable’. The Commission considers that this qualification placed
upon the employers' duty is incompatible with Articles 5(1)
and 5(4) of Directive 89/391/EEC (‘the Directive’).