Case C-276/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 24 May 2005 in The Wellcome Foundation Ltd. v Paranova Pharmazeutika Handels GmbH
Date: 2005-09-03
Institutions: Court of Justice
Subjects: interpretation of the law, preparation for market, trade-mark law

3.9.2005

EN

Official Journal of the European Union

C 217/29

Reference for a preliminary ruling from the Arios Pagos
by decision of that court of 9 June 2005 in Athinaiki Khar-
topiia A.E. v L. Panagiotidis and Others

(Case C-270/05)

(2005/C 217/56)

(Language of the case: Greek)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Arios Pagos (Supreme
Court of Cassation) of 9 June 2005, received at the Court
Registry on 1 July 2005,
for a preliminary ruling in the
proceedings between Athinaiki Khartopiia A.E. and L. Panagio-
tidis and Others on the following question:

Does the operating unit whose staff were made collectively
redundant by the employer in derogation from the procedures
for informing and consulting with the workers' representatives
which are envisaged in Article 1(2)(d) of Directive 75/129,
Article 2(4) of Directive 92/56 and Article 4(4) of Directive
98/59 fall within the meaning of the Community term ‘estab-
lishment’, for the purpose of applying the Council directives
referred to in the grounds of this decision and Law 1387/1983
concerning ‘control of collective redundancies and other provi-
sions’?

Article 71 thereof, be construed as meaning that offences of
possession for the purposes of export and import in respect
of the same narcotic drugs and psychotropic substances and
which are prosecuted as exports and imports respectively in
different countries which have signed the Convention imple-
menting the Schengen Agreement, are deemed to be the
“same acts”, as referred to in Article 54 of that Convention?’

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 24 May 2005 in The
Wellcome Foundation Ltd. v Paranova Pharmazeutika
Handels GmbH

(Case C-276/05)

(2005/C 217/58)

(Language of the case: German)

Reference for a preliminary ruling from the Hof van
Beroep, Antwerp by judgment of that court of 30 June
2005 in 1. …, 2. … and 3. Bowens, Werner Constant Maria

(Case C-272/05)

(2005/C 217/57)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
the Hof van Beroep,
pean Communities by judgment of
Antwerp of 30 June 2005, received at the Court Registry on 5
July 2005, for a preliminary ruling in the proceedings between
1. …, 2. … and 3. Bowens, Werner Constant Maria on the
following question:

1.

‘Must Article 54 of the Convention of 19 June 1990 imple-
menting the Schengen Agreement, read in conjunction with

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Supreme Court, Austria) of 24 May 2005, received at the
Court Registry on 6 July 2005, for a preliminary ruling in the
proceedings between The Wellcome Foundation Ltd. and Para-
nova Pharmazeutika Handels GmbH on the following ques-
tions:

1. a. Are Article 7 of the Trade Marks Directive [First Council
Directive 89/104/EEC of 21 December 1988 to approxi-
mate the laws of the Member States relating to trade
marks] (1) and the case-law of the Court of Justice of the
European Communities which has been pronounced on
it to be interpreted as meaning that proof that reliance
on the trade mark would contribute to an artificial parti-
tioning of the market must be furnished not only as
regards the repackaging in itself, but also as regards the
presentation of the new packaging?

If the answer to this question is in the negative:

b. Is the presentation of the new packaging to be measured
against the principle of minimum intervention or (only)
against whether it is such as to damage the reputation of
the trade mark and its proprietor?

C 217/30

EN

Official Journal of the European Union

3.9.2005

2. Are Article 7 of the Trade Marks Directive and the case-law
of the Court of Justice of the European Communities which
has been pronounced on it to be interpreted as meaning
that the parallel importer fulfils his duty of notification only
if he informs the proprietor of the trade mark also of the
state of export and the precise reasons for the repackaging?

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

Appeal brought on 13 July 2005 (fax: 12 July 2005) by
Holcim (Deutschland) AG, formerly Alsen AG, against the
judgment delivered on 21 April 2005 by the Court of First
Instance of the European Communities (Third Chamber)
in Case T-28/03 between Holcim (Deutschland) AG,
formerly Alsen AG, and the Commission of the European
Communities

(Case C-282/05 P)

(2005/C 217/59)

(Language of the case: German)

An appeal against the judgment delivered on 21 April 2005 by
the Court of First Instance of the European Communities (Third
Chamber) in Case T-28/03 between Holcim (Deutschland) AG,
formerly Alsen AG, and the Commission of
the European
Communities was brought before the Court of Justice of the
European Communities on 13 July 2005 (fax: 12 July 2005) by
Holcim (Deutschland) AG, formerly Alsen AG, represented by
Peter Niggemann and Frederik Wiemer, Rechtsanwälte, Fresh-
fields Bruckhaus Deringer, Feldmühleplatz 1, D-40545 Düssel-
dorf.

The appellant claims that the Court should:

1. Set aside the judgment of the Court of First Instance of the
European Communities of 21 April 2005 in Case T-28/03
between Holcim (Deutschland) AG and the European
Commission; (1)

2. Order the defendant and respondent to pay to the applicant
the sum of EUR 139 002,21 together with interest at an
overall rate of 5,75 % for the period from 15 April 2000
until payment has been made in full;

3. In the alternative, refer the case back to the Court of First
Instance for a fresh decision, having regard to the interpreta-
tion of the law given by the Court of Justice;

1. The Court of First Instance has infringed Article 46 of the
Statute of the Court of Justice by ruling that the reimburse-
ment claim was time-barred in so far as the claims arose
before 31 January 1998. Contrary to the view of that Court,
the limitation period did not begin to run on provision of
the guarantees, but only when the Cement judgment was
given on 15 March 2000. Only after the annulment of the
Cement decision could the defendant's obligation to
compensate have been successfully relied on. In particular,
the amount of the loss was not sufficiently clear when the
guarantees were provided, since it was not foreseeable how
long the annulment proceedings would last. In addition, it
was not the case that a large number of daily, successive
losses arose as a result of the provision of guarantees; on
the contrary the loss was a single and uniform one. In the
alternative, it is submitted that under the second sentence of
Article 46 of the Statute of the Court of Justice the limita-
tion period was interrupted by the lodging of annulment
proceedings.

2. The Court of First Instance was incorrect to examine and
reject the existence of a ‘sufficiently serious breach’ under
the second paragraph of Article 288 EC. First, that addi-
tional condition for a claim to reimbursement was devel-
oped by case-law only in respect of Community legislative
measures and not in respect of administrative acts — such
as fining decisions issued pursuant to competition rules.
Even if the criterion of a 'sufficiently serious breach' were
also to apply in this case, there would however be such an
infringement, since the defendant had no discretion when
issuing the unlawful Cement decision; the complexity of the
case can then no longer matter. However, even if
the
complexity were to be examined in addition, the case could
not be qualified as complex, at least to the extent that the
applicant or
its legal predecessors were affected. With
respect to them, the Cement proceeding merely dealt with
the examination of a small amount of evidence and the
simple question whether there was a lawful export cartel.
The joining of the proceedings in respect of several other
undertakings into a single proceeding cannot adversely
affect the applicant.

3. The Court of First Instance did not correctly assess the ques-
tion of the causal link between the unlawfulness and the
loss. Had the defendant not imposed the unlawful fining
decision on the applicant, the latter would not have incurred
any losses by way of guarantee costs. The provision of bank
guarantees did not break the causal
link. Both forms of
security — namely provisional payment of the amount of
the fine and provision of guarantees — should be regarded
in the same manner in terms of their legal consequences.

4. Order the defendant and respondent to pay all the costs of

(1) OJ C 155 of 25.6.2005, p. 14.

the proceedings.

Grounds of appeal and main arguments

The appellant relies on three grounds of appeal: