Judgment of the Court (Fifth Chamber) of 7 July 2005 in Case C-214/04: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil obligations — Substances harmful to the ozone layer — Article 5(3) of Regulation (EC) No 2037/2000 — Maintenance of derogations not provided for in the regulation)
Date: 2005-09-17
Institutions: Court of Justice
Subjects: EU law - national law, European Commission, Italy, action for failure to fulfil an obligation, chemical product, environmental standard, fire protection, stratospheric pollution

17.9.2005

EN

Official Journal of the European Union

C 229/3

JUDGMENT OF THE COURT

(Second Chamber)

of 7 July 2005

in Case C-353/03 (Reference for a preliminary ruling
Court of Appeal): Société des produits Nestlé SA v Mars
UK Ltd (1)

(Trade marks — Directive 89/104/EEC — Absence of
distinctive
acquired
through use — Use as part of or in conjunction with a regis-
tered trade mark)

character — Distinctive

character

(2005/C 229/05)

(Language of the case: English)

the Court on 18 August 2003,

In Case C-353/03, reference for a preliminary ruling under
Article 234 EC, by the Court of Appeal (England and Wales)
(Civil Division) (United Kingdom), made by Decision of 25 July
2003, received at
in the
proceedings between Société des produits Nestlé SA and
Mars UK Ltd, the Court: (Second Chamber) composed of C.
W. A. Timmermans, President of the Chamber, R. Silva de
Lapuerta, C. Gulmann (Rapporteur), P. Kūris and G. Arestis,
Judges;
J. Kokott, Advocate General, L. Hewlett, Principal
Administrator for the Registrar, gave a judgment on 7 July
2005, the operative part of which is as follows:

The distinctive character of a mark referred to in Article 3(3) of First
Council Directive 89/104/EEC of 21 December 1988 to approxi-
mate the laws of the Member States relating to trade marks may be
acquired in consequence of the use of that mark as part of or in
conjunction with a registered trade mark.

(1) OJ C 251 of 18.10.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 7 July 2005

in Case C-374/03 (Reference for a preliminary ruling
Verwaltungsgericht): Gaye Gürol v Bezirksregierung
Köln (1)

(EEC-Turkey Association Agreement — Article 9 of Decision
No 1/80 of the Association Council — Direct effect —
Access to education for children of a Turkish worker duly
registered as belonging to the workforce — Children living
with their parents — Education grant)

(2005/C 229/06)

(Language of the case: German)

In Case C-374/03, reference for a preliminary ruling under
from the Verwaltungsgericht Sigmaringen
Article 234 EC,

(Germany), made by decision of 31 July 2003, received at the
Court on 8 September 2003, in the proceedings Gaye Gürol
and Bezirksregierung Köln,
(First Chamber),
composed of P. Jann, President of the Chamber, K. Lenaerts,
J.N. Cunha Rodrigues (Rapporteur), E.
Ilešič,
Judges; L.A. Geelhoed, Advocate General, M.-F. Contet, Prin-
cipal Administrator, has given a judgment on 7 July 2005, the
operative part of which is as follows:

Juhász and M.

the Court

1. The first sentence of Article 9 of Decision No 1/80 of the Asso-
ciation Council of 19 September 1980 on the development of the
Association, adopted by the Association Council created under the
establishing an association between the European
agreement
Economic Community and Turkey, has direct effect in the Member
States.

2. The condition of residing with parents in accordance with the first
sentence of Article 9 is met in the case of a Turkish child who,
after residing legally with his parents in the host Member State,
establishes his main residence in the place in the same Member
State in which he follows his university studies, while declaring his
parents' home to be his secondary residence only.

3. The second sentence of Article 9 of Decision No 1/80 has direct
effect in the Member States. That provision guarantees Turkish
children a non-discriminatory right of access to education grants,
such as that provided for under the legislation at issue in the main
proceedings, that right being theirs even when they pursue higher
education studies in Turkey.

(1) OJ C 304 of 13.12.2003.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 July 2005

in Case C-214/04: Commission of the European Commu-
nities v Italian Republic (1)

(Failure by a Member State
to fulfil obligations —
Substances harmful to the ozone layer — Article 5(3) of
Regulation (EC) No 2037/2000 — Maintenance of deroga-
tions not provided for in the regulation)

(2005/C 229/07)

(Language of the case: Italian)

In Case C-214/04 Commission of the European Communities
(Agents: U. Wölker and A. Aresu) v Italian Republic (Agent:
I.M. Braguglia, assisted by G. Fiengo) — action under Article
226 EC for failure to fulfil obligations, brought on 19 May
2004 — the Court (Fifth Chamber), composed of R. Silva de

C 229/4

EN

Official Journal of the European Union

17.9.2005

Lapuerta, President of the Chamber, P. Kūris and J. Klučka
(Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass,
Registrar, gave a judgment on 7 July 2005, in which it:

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

1. Declares that by maintaining arrangements for authorising the use
of hydrochlorofluorocarbons
in fire protection systems without
laid down in
complying with the restrictions and conditions
Article 5(3) of Regulation (EC) No 2037/2000 of the European
Parliament and of the Council of 29 June 2000 on substances
that deplete the ozone layer, the Italian Republic has failed to fulfil
its obligations under that regulation.

2. Orders the Italian Republic to pay the costs.

(1) OJ C 190 of 24.7.2004.

Action brought on 11 May 2005 by Commission of the
European Communities against the Kingdom of Sweden

(Case C-206/05)

(2005/C 229/08)

(Language of the case: Swedish)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 11 May
2005 by the Commission of the European Communities, repre-
sented by Friedrich Erlbacher and Knut Simonsson, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. first, declare that, by laying down in its national legislation a
requirement that a stallion be assessed in Sweden for stud
purposes before being used to breed with mares other than
those of the stallion's owner, Sweden has failed to fulfil its
obligations under Article 3 of Council Directive 90/427/EEC
of 26 June 1990 on the zootechnical and genealogical
conditions governing intra-Community trade in equidae;

second, declare that, by laying down in its national legisla-
that a stallion must be assessed in
tion a requirement
Sweden for stud purposes before being used to breed with
mares other than those of the stallion's owner, Sweden has
failed to fulfil its obligations under Article 28 EC;

Pleas in law and main arguments

The Commission considers that, by laying down in its national
legislation a requirement that a stallion be assessed in Sweden
for stud purposes before it may be used for breeding with
mares other than those of the stallion's owner, the Kingdom of
Sweden is restricting trade in horses within the Community.

that

The fact
in Directive 90/427/EEC, or in any decision
adopted on the basis of the directive, methods for assessment
for stud purposes are not established does not mean that a
Member State is entitled to lay down such a requirement. More-
over, the Swedish requirement for such an assessment is not
justified by Article 30 EC in the interest of protecting the
health and life of animals. The Commission submits that the
Kingdom of Sweden's requirement for an assessment seems to
be more in order to improve the characteristics of current
breeds than to protect the health and life of horses.

Action brought on 15 June 2005 by Commission of the
the
European Communities against

the Kingdom of

Netherlands

(Case C-253/05)

(2005/C 229/09)

(Language of the case: Dutch)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 June 2005 by the Commission of the European Commu-
nities, represented by Minas Konstantinidis and Pieter Van
Nuffel, acting as Agents.

The applicant claims that the Court should:

— Declare that, by creating obstacles by means of the Conve-
nant Verpakkingen (packaging rules) III, to the marketing in
the Netherlands of drinks packaging originating in other
Member States and satisfying the essential requirements laid
down in European Parliament and Council Directive
94/62/EC (1) of 20 December 1994 on packaging and
packaging waste, the Kingdom of the Netherlands has failed
to fulfil its obligations under Article 18 of that directive;

— Order the Netherlands to pay the costs.