Case C-281/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 2 June 2005 in Montex Holdings Ltd. v Diesel S.p.A.
Date: 2005-10-01
Institutions: Court of Justice
Subjects: interpretation of the law, registered trade mark, trade-mark law, transit

1.10.2005

EN

Official Journal of the European Union

C 243/7

Reference for a preliminary ruling from the High Court of
Justice (England and Wales), Chancery Division, by order
of that court of 22 June 2005, in 1) Carol Marilyn Robins
John Burnett v Secretary of State for Work and
2)

Pensions

Reference for a preliminary ruling from the Bundesge-
richtshof by order of that court of 2 June 2005 in Montex
Holdings Ltd. v Diesel S.p.A.

(Case C-278/05)

(2005/C 243/09)

(Language of the case: English)

(Case C-281/05)

(2005/C 243/10)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
Justice
(England and Wales), Chancery Division, of 22 June 2005,
received at the Court Registry on 6 July 2005, for a preliminary
ruling in the proceedings between 1) Carol Marilyn Robins 2)
John Burnett and Secretary of State for Work and Pensions on
the following questions:

the High Court of

(1) Is Article 8 of Directive 80/987/EEC (1) to be interpreted as
requiring Member States to ensure, by whatever means
necessary, that employees' accrued rights under supplemen-
salary pension
tary company or
schemes are fully funded by Member States in the event
that the employees' private employer becomes insolvent
and the assets of their schemes are insufficient to fund
those benefits?

inter company final

(2) If the answer to Question (1) is no, are the requirements of
Article 8 sufficiently implemented by legislation such as
that in force in the United Kingdom as described above?

(3) If the UK legislative provisions fail to comply with Article
8, what test should be applied by the national court in
considering whether the consequent infringement of Com-
munity law is sufficiently serious to attract
liability in
damages? In particular, is the mere infringement enough to
establish the existence of a sufficiently serious breach, or
must there also have been a manifest and grave disregard
by the Member States for the limits on its rule making
powers, or is some other test to be applied and if so
which?

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Bundesgerichtshof
(Germany) of 2 June 2005, received at the Court Registry on
13 July 2005,
for a preliminary ruling in the proceedings
between Montex Holdings Ltd. and Diesel S.p.A. on the
following questions concerning the interpretation of Article
5(1) and (3) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (1) and concerning Articles 28 to
30 EC:

(a) Does a registered trade mark grant its proprietor the right

to prohibit the transit of goods with the sign?

(b) If the answer is in the affirmative: may a particular assess-
ment be based on the fact that the sign enjoys no protec-
tion in the country of destination?

(c) If the answer to (a) is in the affirmative and irrespective of
the answer to (b), is a distinction to be drawn according to
whether the article whose destination is a Member State
comes from a Member State, an associated State or a third
country? Is it relevant in this regard whether the article has
been produced in the country of origin lawfully or in
infringement of a right to a sign existing there held by the
trade-mark proprietor?

(1) Council Directive 80/987/EEC of 20 October 1980 on the approxi-
mation of the laws of the Member States relating to the protection
of employees in the event of the insolvency of their employer (OJ L
283, 28.10.1980, p. 23).

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