Judgment of the Court (Grand Chamber) of  18 October 2005  in Case C-405/03: Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage in Class International BV v Colgate-Palmolive Company, Unilever NV, SmithKline Beecham plc, Beecham Group plc (Trade marks — Directive 89/104/EEC — Regulation (EC) No 40/94 — Rights conferred by the trade mark — Use of the mark in the course of trade — Importation of original goods into the Community — Goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Offering for sale or selling goods placed under the external transit procedure or the customs warehousing procedure — Opposition of the trade mark proprietor — Onus of proof)
Date: 2005-12-10
Institutions: Court of Justice
Subjects: interpretation of the law, storage, trade mark, trade-mark law

10.12.2005

EN

Official Journal of the European Union

C 315/3

as

amended

Declares that, by reserving, in Article 4 of Law No 85-704 of 12
July 1985 on public project contracting and its relationship to private
project management,
by Law No 96-987 of
14 November 1996 on the implementation of the urban revival pact,
the task of delegated project contracting to an exhaustive list of legal
persons created under French law, the French Republic has failed to
fulfil its obligations under Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award of
public service contracts, as amended by European Parliament and
Council Directive 97/52/EC of 13 October 1997, and under Article
49 EC.

(1) OJ C 200 of 23.08.2003.

ment on 20 October 2005, the operative part of which is as
follows:

Article 11(2) of Directive 97/13/EC of the European Parliament and
of
the Council of 10 April 1997 on a common framework for
general authorisations and individual licences in the field of telecom-
munications services must be interpreted as precluding national legis-
lation such as that at issue in the main proceedings which provides
that a new operator on the telecommunications market is required to
pay a charge in respect of the allocation of telephone numbers taking
account of their economic value, even though a telecommunications
undertaking having a dominant position on the same market took
over free of charge the very large stock of numbers which were avail-
able to its predecessor,
law
precludes retrospective payment of such a charge in respect of that
stock.

the former monopoly, and national

JUDGMENT OF THE COURT

(1) OJ C 251 of 18.10.2003.

(Third Chamber)

of 20 October 2005

in Joined Cases C-327/03 and C-328/03: References for a
preliminary ruling from the Bundesverwaltungsgericht in
Bundesrepublik Deutschland v ISIS Multimedia Net GmbH
und Co. KG, and Others (1)

JUDGMENT OF THE COURT

(Grand Chamber)

of 18 October 2005

(Telecommunications
services — Directive 97/13/EC —
Article 11(2) — Charge for the allocation of new telephone
numbers — Stock of numbers available free of charge to the
undertaking succeeding the former monopoly)

in Case C-405/03: Reference for a preliminary ruling from
the Gerechtshof te 's-Gravenhage in Class International BV
v Colgate-Palmolive Company, Unilever NV, SmithKline
Beecham plc, Beecham Group plc (1)

(2005/C 315/05)

(Language of the case: German)

(Trade marks — Directive 89/104/EEC — Regulation (EC)
No 40/94 — Rights conferred by the trade mark — Use of
the mark in the course of trade — Importation of original
goods into the Community — Goods placed under the
external transit procedure or the customs warehousing proce-
dure — Opposition of the trade mark proprietor — Offering
for sale or selling goods placed under the external transit
procedure or the customs warehousing procedure — Opposi-
tion of the trade mark proprietor — Onus of proof)

In Joined Cases C-327/03 and C-328/03: two references for a
preliminary ruling under Article 234 EC from the Bundesver-
waltungsgericht
(Germany), made by decisions of 30 April
2003, received at the Court on 28 July 2003, in the proceed-
ings between Bundesrepublik Deutschland and ISIS Multimedia
Net GmbH und Co. KG, represented by ISIS Multimedia Net
Verwaltungs GmbH (C-327/03), Firma O2 (Germany) GmbH
(Third Chamber),
und Co. OHG (C-328/03) — the Court
J. Male-
composed of A. Rosas, President of the Chamber,
novský, S. von Bahr (Rapporteur), A. Borg Barthet and U.
Lõhmus, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M.
Ferreira, Principal Administrator, for the Registrar, gave a judg-

(2005/C 315/06)

(Language of the case: Dutch)

In Case C-405/03: reference for a preliminary ruling under
's-Gravenhage
Article 234 EC from the Gerechtshof

te

C 315/4

EN

Official Journal of the European Union

10.12.2005

the Court on 29 September 2003,

(Netherlands), made by decision of 28 August 2003, received
at
in the proceedings
pending before that court between Class International BV and
Colgate-Palmolive Company, Unilever NV, SmithKline Beecham
plc, Beecham Group plc — the Court
(Grand Chamber),
composed of V. Skouris, President, P. Jann, C.W.A. Timmer-
mans, A. Rosas and J. Malenovský, Presidents of Chambers,
C. Gulmann (Rapporteur), R. Schintgen, N. Colneric, S. von
J.N. Cunha Rodrigues, A. Borg Barthet, M. Ilešič, and
Bahr,
J. Klučka, Judges; F.G. Jacobs, Advocate General; M. Ferreira,
Principal Administrator, for the Registrar, gave a judgment on
18 October 2005, the operative part of which is as follows:

1. Article 5(1) and (3)(c) of First Council Directive 89/104/EEC of
the Member
21 December 1988 to approximate the laws of
States relating to trade marks and Article 9(1) and (2)(c) of
Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark must be interpreted as meaning that a
trade mark proprietor cannot oppose the mere entry into the Com-
munity, under the external transit procedure or the customs ware-
housing procedure, of original goods bearing that mark which had
not already been put on the market in the Community previously
by that proprietor or with his consent. The trade mark proprietor
cannot make the placing of the goods at issue under the external
transit procedure or the customs warehousing procedure conditional
on the existence, at the time of the introduction of those goods
into the Community, of a final destination already specified in a
third country, possibly pursuant to a sale agreement.

2.

the goods, within the
‘Offering’ and ‘putting on the market’
meaning of Article 5(3)(b) of Directive 89/104 and Article
9(2)(b) of Regulation No 40/94, may include, respectively, the
offering and sale of original goods bearing a trade mark and
having the customs status of non-Community goods, when the
offering is done and/or the sale is effected while the goods are
placed under the external transit procedure or the customs ware-
housing procedure. The trade mark proprietor may oppose the
offering or the sale of such goods when it necessarily entails the
putting of those goods on the market in the Community.

3. In a situation such as the one at issue in the main proceedings, it
is for the trade mark proprietor to prove the facts which would
give grounds for exercising the right of prohibition provided for in
Article 5(3)(b) and (c) of Directive 89/104 and Article 9(2)(b)
and (c) of Regulation No 40/94, by proving either release for free
circulation of the non-Community goods bearing his mark or an
offering or sale of the goods which necessarily entails their being
put on the market in the Community.

(1) OJ C 304 of 13.12.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 20 October 2005

in Case C-468/03: reference for a preliminary ruling from
the VAT and Duties Tribunal, London Overland Footwear
Ltd v Commissioners of Customs & Excise (1)

customs duties —
tariff — Import
(Common customs
Declared customs value including a buying commission —
Payment of customs duty on full amount declared — Revision
of the customs declaration — Conditions — Refund of
customs duties paid on the buying commission)

(2005/C 315/07)

(Language of the case: English)

In Case C-468/03: reference for a preliminary ruling under
Article 234 EC from the VAT and Duties Tribunal, London
(United Kingdom), made by decision of 29 September 2003,
received at the Court on 6 November 2003, in the proceedings
between Overland Footwear Ltd and Commissioners of
Customs & Excise — the Court (Second Chamber), composed
of C.W.A. Timmermans and J. Makarczyk, Presidents of Cham-
bers, C. Gulmann (Rapporteur), R. Schintgen and J. Klučka,
Judges; M. Poiares Maduro, Advocate General; K. Sztranc,
Administrator,
for the Registrar, gave a judgment on 20
October 2005, the operative part of which is as follows:

1. Articles 29, 32 and 33 of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community
Customs Code must be interpreted as meaning that a buying
commission included in the declared customs value and not distin-
guished from the sale price of the goods in the customs declaration
is to be regarded as forming part of the transaction value within
the meaning of Article 29 of the Code and therefore dutiable.

2. On a proper interpretation of Articles 78 and 236 of Regulation

No 2913/92:

— after the release of the imported goods, the customs authorities,
presented with an application from the declarant seeking revi-
sion of his customs declaration in relation to those goods, are
required, subject to the possibility of a subsequent court action,
either to reject the application by a reasoned decision or to
carry out the revision applied for;

— where they find, at the conclusion of that revision, that the
declared customs value erroneously included a buying commis-
sion, they are required to regularise the situation by reimbur-
sing the import duties applied to that commission.

(1) OJ C 7, 10.01.2004.