Case C-313/05: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Warszawie by order of that court of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby Celnej w Warszawie
Date: 2005-11-12
Institutions: Court of Justice
Subjects: Germany, Poland, interpretation of the law, intra-EU trade, measure having equivalent effect, quantitative restriction, tax system, used goods, vehicle tax

12.11.2005

EN

Official Journal of the European Union

C 281/5

2. order OHIM to pay the remainder of

the costs of

the

proceedings.

teristics and characteristics which are not
obvious to the relevant public.

immediately

Grounds of appeal and main arguments

(1) OJ 2005 C 193, p. 26.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark.

In his appeal against the abovementioned judgment, the appel-
lant relies on pleas of procedural irregularities and an infringe-
ment of Community law by the Court of First Instance:

1. As regards the question whether, or to what extent, the
appellant can be represented and assisted by a patent agent,
the Court misinterpreted Article 19 of the Rules of Proce-
dure of the Court of First Instance. Under that provision, the
term ‘lawyer’ also covers patent agents provided that their
legal system authorises them to represent parties before a
court and provided that their national
legal order grants
them a status within their legal system which, in terms of
the rights and responsibilities
is
comparable to that of a lawyer.

transferred to them,

2. In assessing the questions whether, or to what extent, the
attestation concerning the registration of US trade mark
76/302,601 ‘ROCKBASS’ and the new arguments and
evidence contained in the appellant's written statement were
to be considered in the present proceedings, the Court not
only misjudged the scope of the principle of examination of
the facts by the Office of its own motion in Article 74 of
the Community Trade Mark Regulation (2), but also misap-
plied the provisions laid down in Article 7(1)(b) and (c)
thereof.

3. As regards the meaning and grammatical structure of the
sign ‘ROCKBASS’, the Court misrepresented or falsified the
facts submitted. The Court overlooked the fact that the sign
‘ROCKBASS’ is extremely complex and did not consider that
many different grammatical combinations are possible for
that mark. Since the Court did not give any reasons for
those misrepresentations it also breached its duty to give
reasons.

4. The Court misrepresented or falsified the facts submitted as
regards the possibility of using the goods in Classes 9 and
18 independently of the goods claimed in Class 15 and,
since it did not provide any coherent reasons for doing so,
it thereby also breached its duty to give reasons.

5. As regards the question whether the registered trade mark
‘ROCKBASS’ is directly descriptive of all the goods claimed,
the Court misapplied Article 7(1)(c) of
the Community
Trade Mark Regulation. In so doing, it erroneously based its
findings on the point of view of the average observer with
certain preconceptions instead of the point of view of the
average observer with no preconceptions and, in assessing
the question, it took into account only insignificant charac-

Reference for a preliminary ruling from the Wojewódzki
Sąd Administracyny w Warszawie by order of that court
of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby
Celnej w Warszawie

(Case C-313/05)

(2005/C 281/10)

(Language of the case: Polish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Wojewódzki Sąd Adminis-
tracyny w Warszawie (Regional Administrative Court, Warsaw),
Poland of 22 June 2005, received at the Court Registry on 9
August 2005,
for a preliminary ruling in the proceedings
between Maciej Brzeziński and Dyrektor Izby Celnej w Wars-
zawie (Director of the Customs Chamber in Warsaw) on the
following questions:

1. Does Article 25 of the Treaty establishing the European
Community, which prohibits customs duties on imports and
exports and charges having equivalent effect between
Member States, prohibit a Member State from applying
Article 80 of the Ustawa o Podatku Akcyzowym (Polish
Law on Excise Duty) of 23 January 2004 (Dziennik Ustaw
(Official Journal of the Republic of Poland) No 29, heading
257, as amended) where excise duty is charged on the
purchase of any car, irrespective of its place of origin prior
to its initial registration in Poland?

that

2. Does the first paragraph of Article 90 of the Treaty estab-
lishing the European Community, under which no Member
State may impose, directly or indirectly, on the products of
other Member States any internal taxation of any kind in
excess of
imposed directly or indirectly on similar
domestic products, allow a Member State to impose excise
duty on second-hand cars imported from other Member
States without charging such duty on the sale of second-
hand cars already registered in Poland, where the excise
duty has been imposed, under Article 80 of the Polish Law
on Excise Duty, on all cars not registered in Poland?

C 281/6

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Official Journal of the European Union

12.11.2005

3. Does the second paragraph of Article 90 of the Treaty estab-
lishing the European Community, under which no Member
State may impose on the products of other Member States
any internal taxation of such a nature as to afford indirect
protection to other products, allow a Member State to
impose on second-hand cars imported from other Member
States excise duty at a variable rate depending on the vehi-
cle's age and engine capacity, which is laid down in the
Polish implementing order (Article 7 of the Rozporządzenie
Ministra Finansów w Sprawie Obniżenia Stawek Podatku
Akcyzowego (Order of
the Minister for Finance on the
lowering of the rates of excise duty) of 22 April 2004 —
Dziennik Ustaw No 87, heading 825, as amended), where the
duty on the sale of second-hand cars in Poland is calculated
according to a similar formula before their initial registra-
tion in Poland and this duty subsequently affects the price
of that car when it is resold?

4. Does Article 28 of the Treaty establishing the European
Community, under which quantitative
restrictions on
imports and all measures having equivalent effect are to be
prohibited between Member States — and also having
regard to Article 3(3) of Council Directive 92/12/EEC of 25
February 1992 on the general arrangements for products
subject to excise duty and on the holding, movement and
monitoring of such products — prohibit a Member State
from maintaining in force Article 81 of the Polish Law on
Excise Duty, under which persons effecting intra-Com-
munity acquisition of passenger cars not
registered in
Poland in accordance with the provisions relating to road
traffic are required, after importing them into Poland, to
submit a simplified declaration to the head of the relevant
customs office within five days of the intra-Community
acquisition?

Reference for a preliminary ruling from the Ufficio del
Giudice di Pace di Monselice by order of that court of 12
July 2005 in LIDL Italia Srl v Comune di Arcole (VR)

1. Must Directive 2000/13/EC (1) of the European Parliament
and of the Council of 20 March 2000 on the approximation
of the laws of the Member States relating to the labelling,
presentation and advertising of foodstuffs be interpreted as
meaning, in respect of pre-packaged foodstuffs under Article
1 thereof, that the obligations provided for therein, and in
particular those in Articles 2, 3 and 12, are imposed only
on the producer of the pre-packaged food product?

2. If the answer to the first question is affirmative, must Arti-
cles 2, 3 and 12 of Directive 2000/13/EC be interpreted as
located
precluding the possibility that a mere distributor,
within a Member State, of a foodstuff pre-packaged (as
defined in Article 1 of Directive 2000/13/EC) by a trader in
another Member State, may be held liable for an infringe-
ment alleged by a public authority involving a discrepancy
between the value (in this case percentage of alcohol
content) stated on the label by the producer of the pre-pack-
aged foodstuff, and may thus be penalised, even if that
distributor simply markets the foodstuff in the form in
which it is delivered by the producer of the food product
itself?

(1) OJ L 109 of 06.05.2000, p. 29.

Reference for a preliminary ruling from the Sozialgericht
Köln by order of that court of 8 August 2005 in G. Pohl-
Boskamp GmbH & Co. KG v Gemeinsamer Bundes-
ausschuss; joined parties: (1) AOK-Bundesverband KdöR,
(2) IKK-Bundesverband, (3) Bundesverband der Betriebs-
krankenkassen,
(4) Bundesverband der landwirtschaftli-
chen Krankenkassen, (5) Verband der Angestellten-Kran-
kenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband
e.V.,
(9)
Federal Republic of Germany, represented by the Federal
Ministry of Health and Social Security

(7) Bundesknappschaft,

(8) Seekrankenkasse,

(Case C-315/05)

(Case C-317/05)

(2005/C 281/11)

(2005/C 281/12)

(Language of the case: Italian)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Ufficio del Giudice di Pace
di Monselice (Italy) of 12 July 2005, received at the Court
Registry on 12 August 2005, for a preliminary ruling in the
proceedings between LIDL Italia Srl and Comune di Arcole
(VR) on the following questions:

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Sozialgericht Köln (Social
Court, Cologne) (Germany) of 8 August 2005, received at the
Court Registry on 17 August 2005, for a preliminary ruling in
the proceedings between G. Pohl-Boskamp GmbH & Co. KG