Case C-386/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of  28 September 2005  in Color Drack GmbH v Lexx International Vertriebs GmbH
Date: 2006-01-14
Institutions: Court of Justice
Subjects: EU Member State, EU national, civil law, commercial law, delivery, interpretation of the law, jurisdiction

14.1.2006

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Official Journal of the European Union

C 10/11

(b) In the event of a negative response to that question and
if other conditions are required in order for a competi-
tive relationship to be established,
is it necessary to
consider the current state of the market and drinking
habits in the Community or is it necessary also to
consider how those habits might evolve?

(c) Must any investigation be confined to that part of the
Community territory in which the advertising is dissemi-
nated?

(d) Is it necessary to consider the competitive relationship
in relation to the types of products being compared and
the way in which those types of products are generally
perceived, or is it necessary,
in order to assess the
degree of substitution possible, to take into account also
the particular characteristics of the product which the
advertiser
advertising
to promote
concerned and of the image he intends to give it?

in the

intends

(e) Are the criteria by which a competitive relationship
within the meaning of Article 2(2a) can be established
identical
the
comparison satisfies the condition referred to in para-
graph (b) of Article 3a?

to the criteria for verifying whether

3. Does a comparison of Article 2(2a) of Directive 84/450 (1)

with Article 3a of that directive mean that

(a) either any comparative advertising is unlawful which
to be identified where a
enables a type of product
competitor or the goods offered by him cannot be iden-
tified from the wording?

(b) or the lawfulness of the comparison must be considered
in the light only of national legislation other than that
by which the provisions of the directive on comparative
advertising are transposed, which could lead to reduced
protection for consumers or undertakings offering the
type of product being compared with the product
offered by the advertiser?

4. If it should be concluded that there has been comparative
advertising within the meaning of Article 2(2a), must it be
the Directive that any
inferred from Article 3a(1)(f) of
comparison is unlawful which,
in respect of products
without designation of origin, relates to products with desig-
nation of origin?

(1) Council Directive 84/450/EEC of 10 September 1984 relating to the
approximation of the laws, regulations and administrative provi-
sions of the Member States concerning misleading advertising (OJ
1984 L 250, p. 17), as amended by Directive 97/55/EC of the Euro-
pean Parliament and of the Council of 6 October 1997 (OJ 1997 L
290, p. 18)

Reference for a preliminary ruling from the Cour de cassa-
tion de Belgique by judgment of that court of 7 October
2005 in Raffaele Talotta v État belge

(Case C-383/05)

(2006/C 10/21)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour de cassation de
Belgique (Belgian Court of Cassation) of 7 October 2005,
received at the Court Registry on 24 October 2005, for a preli-
minary ruling in the proceedings between Raffaele Talotta and
the État belge on the following question:

Is Article 43 (formerly Article 52) of the EC Treaty to be inter-
preted as prohibiting a provision of national
law, such as
Article 182 of the [Belgian] Royal Decree of 27 August 1993
implementing Article 342(2) of the Income Tax Code 1992,
whereby minimum tax bases are applied only in the case of
non-residents?

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 28 September 2005
in Color Drack GmbH v Lexx International Vertriebs
GmbH

(Case C-386/05)

(2006/C 10/22)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Austria) of 28 September 2005, received at the Court Registry
on 24 October 2005, for a preliminary ruling in the proceed-
ings between Color Drack GmbH and Lexx International
Vertriebs GmbH on the following question:

C 10/12

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Official Journal of the European Union

14.1.2006

Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22
December 2000 on jurisdiction and the recognition and enfor-
cement of judgments in civil and commercial matters (OJ 2001
L 12, p. 1) to be interpreted as meaning that a seller of goods
domiciled in one Member State who, as agreed, has delivered
the goods to the purchaser, domiciled in another Member
State, at various places within that other Member State, can be
sued by the purchaser regarding a claim under the contract
relating to all the (part) deliveries — if need be, at the plaintiff's
choice — before the court of one of those places (of perfor-
mance)?

Artificial insemination services in France, in fact and in law, are
subject to a monopoly in favour of ‘centres de mise en place’,
which prevents providers of those services from other Member
States from performing those activities, either by means of the
right of establishment or by that of
freedom to provide
services. The French authorities put forward health considera-
tions which, they submit, may justify adopting or retaining
domestic measures so restrictive as to nullify those two Treaty
freedoms for practical purposes. The Commission disputes the
validity of those justifications, however, considering that, by
their very nature, those restrictions are in any event dispropor-
tionate to the health and safety objectives put forward as the
main grounds for them.

Action brought on 27 October 2005 by the Commission
of the European Communities against the French Republic

(Case C-389/05)

(2006/C 10/23)

(Language of the case: French)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 27 October
2005 by the Commission of the European Communities, repre-
sented by A. Bordes, acting as Agent, with an address for
service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by allowing only ‘centres de mise en place’
authorised in France to carry out activities related to the
insemination of cattle, the French Republic has
artificial
failed to fulfil its obligations under Articles 43 and 49 EC;

2. order the French Republic to pay the costs.

Pleas in law and main arguments

Articles 43 and 49 EC respectively lay down the right of estab-
lishment and freedom to provide services. Article 46 also
provides that the provisions of those Articles and the measures
taken in pursuance thereof shall not prejudice the applicability
of the domestic provisions of a Member State providing for
special treatment for foreign nationals on grounds of public
policy, public security, or public health. However, that latter
provision is not at issue here, as the Commission's challenge
does not concern special treatment for foreign nationals who
wish to provide artificial insemination services in France, but
the impossibility, in law and in fact, of Community nationals
performing that activity because of the monopoly granted in
France to ‘insemination centres’ by means of, inter alia, two
provisions of French legislation.

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 30 August 2005 in Jan
de Nul N.V. v Hauptzollamt Oldenburg

(Case C-391/05)

(2006/C 10/24)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg of
30 August 2005, received at the Court Registry on 21 October
2005, for a preliminary ruling in the proceedings between Jan
de Nul N.V. and Hauptzollamt Oldenburg on the following
questions:

1. What interpretation should be given to the term ‘Com-
munity waters’ in the first paragraph of Article 8(1)(c) of
Directive 92/81 in contrast to the term ‘inland waterways’
for the purposes of the first paragraph of Article 8(2)(b) of
Directive 92/81 (1)?

2. Should the operation of a suction and holding vessel (so-
called ‘hopper dredger’)
in Community waters always be
regarded as navigation within the meaning of the first para-
graph of Article 8(1)(c) of Directive 92/81 or is it necessary
to draw a distinction between the various forms of activity
during the course of its use?

(1) OJ 1992 L 316, p. 12.