Case C-318/05: Action brought on 17 August 2005 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2005-10-15
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, free movement of persons, freedom to provide services, private education, school fees, tax relief

C 257/4

EN

Official Journal of the European Union

15.10.2005

1. Where Directive 1999/70/EC (1) provides that

fixed-term
workers are not be treated in a less favourable manner than
comparable permanent workers, does this also refer to
remuneration?

If the answer is affirmative:

2. Is the fact that Article 44 of Law 55/2003 of 16 December
2003 of the Framework Statute for Statutory Workers in
the Health Service provides that temporary workers are not
entitled to the length of service allowance recognised for
permanent workers an adequate and objective reason?

3. Are the agreements concluded between the staff unions and
the administration adequate and objective reasons for not
recognising the length of service allowance for temporary
workers?

(1) Council Directive 1999/70/EC of 28 June 1999 concerning the
framework agreement on fixed-term work concluded by ETUC,
UNICE and CEEP (OJ L 175 , of 10/07/1999 p. 43).

which finds that the defendant has infringed a Community
trade mark may, even if
there is no such ground for
refraining from issuing a prohibition of further infringement
as contemplated in Question 1, refrain from issuing such a
prohibition on the grounds that it is clear that a further
infringement is covered by a statutory general prohibition
of infringement under national law and that a penalty may
be imposed on the defendant if he commits a further infrin-
gement intentionally or with gross negligence?

3. If the answer to Question 2 is no, must specific measures,
by which a prohibition is for example coupled with a
penalty, be taken in such a case to ensure that the prohibi-
tion is complied with, even where it is clear that a further
infringement is covered by a statutory general prohibition
of infringement under national law and that a penalty may
be imposed on the defendant if he commits a further infrin-
gement intentionally or with gross negligence?

4. If the answer to Question 3 is yes, does this apply even
where the conditions for adopting such a specific measure
in the case of a corresponding infringement of a national
trade mark would not be regarded as fulfilled?

Reference for a preliminary ruling from the Högsta
Domstolen by order of that court of 9 August 2005 in
Nokia Corporation v Joacim Wärdell

Action brought on 17 August 2005 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-316/05)

(2005/C 257/07)

(Language of the case: Swedish)

(Case C-318/05)

(2005/C 257/08)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Högsta Domstolen
(Supreme Court) of 9 August 2005, received at the Court
Registry on 16 August 2005, for a preliminary ruling in the
proceedings between Nokia Corporation and Joacim Wärdell
on the following questions:

1. Is the condition relating to special reasons in the first
sentence of Article 98(1) of Council Regulation (EC) No
40/94 of 20 December 1993 on the Community trade mark
to be interpreted as meaning that a court which finds that
the defendant has infringed a Community trade mark may,
irrespective of the other circumstances, refrain from issuing
a specific prohibition of further infringement if the court
considers that
is not
obvious or is otherwise merely limited?

infringement

the risk of

further

2. Is the condition relating to special reasons in the first
sentence of Article 98(1) of the Regulation on the Com-
munity trade mark to be interpreted as meaning that a court

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 17 August 2005 by the Commission of the European
Communities, represented by Richard Lyal and Kilian Gross,
acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by excluding school fees in respect of education
abroad without exception from the tax-deductible special
expenses provided for in Article 10(1)(9) of the Einkommen-
steuergesetzes (EStG)
the
Federal Republic of Germany has failed to fulfil its obliga-
tions under Articles 18, 39, 43 and 49 EC;

(German Law on income tax),

2. order the Federal Republic of Germany to pay the costs.

15.10.2005

EN

Official Journal of the European Union

C 257/5

Pleas in law and main arguments

According to the European Commission, the rule laid down in
Article 10(1)(9) of the EStG is incompatible with the freedom
to provide services and the rights to freedom of movement
provided for in the EC Treaty.

Under Article 10(1)(9) of the EStG, taxable persons in Germany
are able to deduct from their taxable income 30 % of the fees
paid to state-approved or recognised private schools as special
expenses from the overall amount of their taxable income. It is
not possible to deduct tax in respect of school fees paid to
private schools established in another Member State.

The Commission considers that the general exclusion of foreign
private schools from that tax reduction is discriminatory. In its
view, the tax disadvantage in respect of foreign private schools
also infringes the freedom of foreign schools to provide services
and the freedom of taxable persons established in Germany
who wish to send their children to a foreign private school.

Foreign private schools are moreover required to set up in
Germany if they wish to avoid a competitive disadvantage
through the less favourable tax treatment of their customers.
That constitutes an inadmissible restriction on freedom of
establishment.

the restriction on the possibility of deduction tax
Finally,
infringes the right to freedom of movement of citizens from
other EU Member States who wish to move to Germany, but
who at the same time wish to continue having their children
educated in their country of origin. The same applies in respect
of German nationals who live in another Member State, but
who are still subject to unlimited tax liability in Germany. They
too are placed at a disadvantage if they wish to send their chil-
dren to a private school outside Germany.

Action brought on 19 August 2005 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-319/05)

(2005/C 257/09)

(Language of the case: German)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 19 August 2005 by the Commission of the European

Communities, represented by Bruno Stromsky and Bernhard
Schima, acting as Agents, with an address for service in Luxem-
bourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by classifying a garlic preparation in capsule
form, which does not fall under the definition of a medicinal
product by virtue of its designation, as a medicinal product,
the Federal Republic of Germany has failed to fulfil its obli-
gations under Articles 28 and 30 EC;

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

By its action, the Commission challenges the classification by
the German authorities of a garlic preparation in capsule form
as a medicinal product.

The Commission takes the view that the product is not a
medicinal product. Garlic is a widely available foodstuff. The
sale of garlic is not to be restricted on grounds of health
protection. The product is not a medicinal product by virtue of
its designation, because it is not indicated or recommended for
treating or preventing illnesses and, furthermore, it is not typi-
cally presented as a medicinal product.

In addition, it is not a medicinal product by virtue of its func-
tion. The mildly preventive effect of garlic against athero-
sclerosis does not lend the product any medicinal characteristic.
In the first place, such an effect can be produced by the
consumption of garlic foodstuffs in various forms. Secondly,
other foodstuffs, such as for example various types of fish, can
guard against atherosclerosis. Thirdly, various foodstuffs which
are entirely general in nature reduce the risk of various illnesses
(tomatoes, broccoli, cocoa etc). The Commission takes the view
that this health-beneficial effect cannot result in such foodstuffs
being termed medicinal products.

Likewise,
the risks involved in consuming garlic in certain
situations do not justify the product at issue being classified as
a medicinal product. Those risks can be dealt with by less
restrictive measures.

The product at
issue is therefore not a medicinal product
within the meaning of Community law. Therefore the fact that
it is classified as a medicinal product in Germany constitutes a
barrier to the free movement of goods. It is not clear how that
barrier can be justified on the grounds of protection of public
health.