Case C-0336/05: Reference for a preliminary ruling from the Tribunal Départemental des Pensions Militaires du Morbihan by order of that court of  7 September 2005  in Ameur Echouikh v Secrétaire d'État aux Anciens Combatants
Date: 2005-11-26
Institutions: Court of Justice
Subjects: France, Morocco, association agreement (EU), disability insurance, equal treatment, foreign national, interpretation of the law, military personnel, national service

C 296/14

EN

Official Journal of the European Union

26.11.2005

It is settled principle that the assessment of likelihood of confu-
sion between trade marks under Article 8(1)(b) of the regu-
lation on the Community trade mark is based on two distinct
first, an analytical comparison between both the
elements:
signs and the goods, and then a concise evaluation of the
results obtained in order to determine whether the average
consumer of the goods in question might believe that those
goods come from the same undertaking or from economically-
linked undertakings. In particular, as regards the comparison
between the signs, the analysis directed at establishing whether
the signs are similar must take into consideration the visual,
phonetic and conceptual aspects to arrive at a global assess-
impression given by the marks
ment based on the general
themselves, taking particular account of their distinctive and
dominant components.

The applicant claims that the Court of First Instance failed to
give effect to the principle cited above and,
it
dismissed the possibility of confusion, basing its assessment
exclusively on the visual perception of the contested mark,
without taking any account of the further elements which may
not be ignored in the overall assessment the likelihood of
confusion.

in particular,

The applicant also submits that the judgment under appeal is
vitiated by manifest inconsistency and illogicality.

Reference for a preliminary ruling from the Tribunal
Départemental des Pensions Militaires du Morbihan by
that court of 7 September 2005 in Ameur
order of

Echouikh v Secrétaire d'État aux Anciens Combatants

(Case C-0336/05)

(2005/C 296/26)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Départemental Des
Pensions Militaires de Morbihan (Armed Services Pensions
Tribunal
for the Department of Morbihan) of 7 September
2005, received at the Court Registry on 15 September 2005,
for a preliminary ruling in the proceedings between Ameur
Echouikh and the Secrétaire D' Etat aux Anciens Combatants
on the following questions:

1. Do Articles 64 and 65 of the Euro-Mediterranean Agree-
ment establishing an association between the European
Communities and their Member States, of the one part, and
the Kingdom of Morocco, of the other part, signed in Brus-
sels on 26 February 1996, have direct effect ?

2. If, for whatever reason, the Euro-Mediterranean Agreement
is not found to be applicable in the present case, are Articles
40 to 42 of the Cooperation Agreement between the Euro-
pean Economic Community and the Kingdom of Morocco,
signed in Rabat on 27 April 1976, which the Euro-Mediter-
ranean Agreement is intended to replace, to be regarded as
having direct effect ?

3. Does a Moroccan national who has served in a Member
State's armed forces,
including service beyond that State's
territorial boundaries, fall within the category of ‘workers’
within the meaning of Articles 64 and 65 of the above-
mentioned 1996 Euro-Mediterranean Agreement and within
the meaning of Articles 40 to 42 of the above-mentioned
1976 Cooperation Agreement?

the provisions of
the above-
4. Irrespective of whether
signed with the Kingdom of
mentioned Agreements
Morocco in 1976 and 1996 are directly effective, can a
Moroccan national, provided that he falls within the cate-
gory of ‘workers’ within the meaning of these provisions in
the Community legal order, invoke the direct applicability
the general principle of non-discrimination based on
of
nationality enshrined in Article 12 of the EC Treaty and
Article 14 of the European Convention for the protection of
human rights and fundamental freedoms?

5. Does an armed services invalidity pension claimed by a
Moroccan national who has served in the armed forces of a
Member State in respect of the sequelae of an accident or
illness occurring in the course of such military service fall
within the category of remuneration for work covered by
Article 64 of the above-mentioned 1996 Euro-Mediterra-
nean Agreement or within the category of social security
benefits covered by Article 65 of that Agreement ?

6. Do Articles 64 and 65 of the Euro-Mediterranean Agree-
ment establishing an association between the European
Communities and their Member States, of the one part, and
the Kingdom of Morocco, of the other part, signed in Brus-
sels on 26 February 1996 and, prior to the entry into force
of that Agreement, Articles 40 to 42 of the Cooperation
Agreement between the European Economic Community
and Kingdom of Morocco, signed in Rabat on 27 April
1976, or, failing that, Article 12 (formerly Article 6) of the
EC Treaty and Article 14 of the European Convention for
the protection of human rights and fundamental freedoms,
preclude a Member State from relying on restrictive provi-
sions in its national legislation connected to the nationality
of a Moroccan national in order to:

— refuse to grant him an armed services invalidity pension
that it would have granted, without that restriction, to
its own nationals who, like him, are permanently resi-
dent in its territory, and who find themselves in the
same position as him, having served in the armed forces
of that Member State in the same circumstances as him?

26.11.2005

EN

Official Journal of the European Union

C 296/15

— apply to him different conditions from those it applies
to its own nationals with regard to the granting, method
of calculation and duration of armed services pensions
intended to compensate for the sequelae of accidents or
illnesses arising in the course of service in its armed
forces?

7. Does the fact that the person concerned was not working at
the time when he made his pension claim and that the acci-
dent or illness on which this claim is based arose whilst he
was formerly engaged in active military service, namely
between 19 August 1949 and 16 August 1964, outside the
territorial boundaries of the Member State he was serving in
the capacity of a soldier, namely in Saigon, affect the replies
to the preceding questions?

or, does it follow from the principle of mutual recognition of
driving licenses laid down in Article 1(2) of the directive and
from the requirement that Article 8(4) of the directive should
be narrowly construed, that the host State must recognise the
validity of the driving licence without a prior control procedure
and that that host State merely has the authority to deny the
right to use the driving licence in the host State if reasons (still)
exist which justify the application of measures under Article
8(2) of the directive?

(1) OJ L 237, p. 1.

Reference for a preliminary ruling from the Oberlandes-
gericht München by order of that court of 9 September
2005 in the criminal proceedings against Stefan Kremer

(Case C-340/05)

(2005/C 296/27)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Oberlandesgericht München
(Germany) of 9 September 2005, received at the Court Registry
on 19 September 2005, for a preliminary ruling in the criminal
proceedings against Stefan Kremer.

The reference concerns the case where the driving licence of a
person in a Member State (host State) has been withdrawn by
the administrative authorities due to unfitness to drive or the
acquisition of such a licence has been refused, the acquisition
of a new driving licence in that host State is dependant on the
applicant obtaining a medical/psychological certificate proving
his fitness to drive in accordance with the provisions of that
host State, the applicant fails to obtain this, and subsequently
— before expiration of the driving ban in the host Member
State — he acquires a driving licence in another Member State
(issuing State).

Action brought on 22 September 2005 by the Commission
of the European Communities against Ireland

(Case C-355/05)

(2005/C 296/28)

(Language of the case: English)

An action against Ireland was brought before the Court of
Justice of the European Communities on 22 September 2005
by the Commission of the European Communities, represented
by Mr. Bernhard Schima and Ms. Doyin Lawumni, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that by failing to adopt all of the laws, regulations
or administrative provisions necessary to comply with
Directive 2003/55/EC of the European Parliament and of
the Council of 26 June 2003 concerning common rules for
the internal market in natural gas and repealing Directive
98/30/EC (1) or, in any event, by failing to notify such provi-
sions to the Commission, Ireland has failed to fulfil its obli-
gations under Article 33 of the Directive.

2. order Ireland to pay the costs.

Pleas in law and main arguments

The following questions are referred for a preliminary ruling:

The period within which the directive had to be transposed
expired on 1 July 2004.

Does Article 8(4) of Council Directive 91/439/EEC (1) permit,
in such a case, the host State to adopt a legal rule under which
a driving licence from an issuing State may be used in the host
State only on application and after examination as to whether
the conditions for the measure under Article 8(2) of the direc-
tive have ceased to apply,

(1) OJ L 176, 15.7. 2003