Case C-441/04: Judgment of the Court (Third Chamber) of  23 February 2006  (reference for a preliminary ruling from the Landesgericht Klagenfurt) — A-Punkt Schmuckhandels GmbH v Claudia Schmidt (Free movement of goods — Articles 28 EC and 30 EC — Measures having equivalent effect — Doorstep selling — Sale of silver jewellery — Prohibition)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: application of EU law, door-to-door selling, free movement of goods, interpretation of the law, jewellery and goldsmith's articles

C 131/18

EN

Official Journal of the European Union

3.6.2006

Operative part of the judgment

Article 3(1)(b) and (c) of First Council Directive 89/104/EEC of 21
the Member States
December 1988 to approximate the laws of
relating to trade marks does not preclude the registration in a
Member State, as a national trade mark, of a term borrowed from the
language of another Member State in which it is devoid of distinctive
character or descriptive of the goods or services in respect of which
registration is sought, unless the relevant parties in the Member State
in which registration is sought are capable of identifying the meaning
of the term.

(1) OJ C 300, 04.12.2004.

Judgment of the Court (Second Chamber) of 9 March 2006
(reference for a preliminary ruling from the Hof van
Cassatie van België) — Criminal proceedings against
Léopold Henri van Esbroeck

(Case C-436/04) (1)

(Convention implementing the Schengen Agreement — Arti-
cles 54 and 71 — Ne bis in idem principle — Application
ratione temporis — Concept of ‘the same acts’ — Import and
to legal proceedings in
export of narcotic drugs subject

different Contracting States)

(2006/C 131/31)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Party in the main proceedings

Léopold Henri van Esbroeck

Re:

Reference for a preliminary ruling — Hof van Cassatie van
België — Interpretation of Arts. 54 and 71 of the Convention
implementing the Schengen Agreement — Ne bis in idem prin-
ciple — Person prosecuted in a Member State for illegally
exporting drugs after having been prosecuted and convicted in
Norway for illegal importing drugs before the Schengen Agree-
ment was applicable to that State

Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at
their common
borders, signed on 19 June 1990 in Schengen, must be applied to
criminal proceedings brought in a Contracting State for acts for
which a person has already been convicted in another Contracting
State even though the Convention was not yet in force in the latter
State at the time at which that person was convicted, in so far as
the Convention was in force in the Contracting States in question
at the time of the assessment, by the court before which the second
proceedings were brought, of the conditions of applicability of the
ne bis in idem principle.

2. Article 54 of the Convention must be interpreted as meaning that:

— the relevant criterion for the purposes of the application of that
article is identity of the material acts, understood as the exis-
tence of a set of facts which are inextricably linked together,
irrespective of the legal classification given to them or the legal
interest protected;

— punishable acts consisting of exporting and importing the
same narcotic drugs and which are prosecuted in different
Contracting States to the Convention are, in principle, to be
regarded as ‘the same acts’ for the purposes of Article 54, the
definitive assessment
the
competent national courts.

in that respect being the task of

(1) OJ C 300 of 4.12.2004.

Judgment of the Court (Third Chamber) of 23 February
2006 (reference for a preliminary ruling from the Landes-
gericht Klagenfurt) — A-Punkt Schmuckhandels GmbH v
Claudia Schmidt

(Case C-441/04) (1)

(Free movement of goods — Articles 28 EC and 30 EC —
Measures having equivalent effect — Doorstep selling —
Sale of silver jewellery — Prohibition)

(2006/C 131/32)

Language of the case: German

Referring court

Landesgericht Klagenfurt (Austria)

Operative part of the judgment

Parties to the main proceedings

1. The ne bis in idem principle, enshrined in Article 54 of

the
Convention implementing the Schengen Agreement of 14 June
the Benelux
1985 between the Governments of

the States of

Applicant: A-Punkt Schmuckhandels GmbH

Defendant: Claudia Schmidt

3.6.2006

EN

Official Journal of the European Union

C 131/19

Re:

Reference for a preliminary ruling — Landesgericht Klagenfurt
— Interpretation of Articles 28 EC and 30 EC — National
legislation prohibiting the door-to-door sale of gold, silver and
platinum jewellery

Operative part of the judgment

Article 28 EC does not preclude a national provision by which a
Member State prohibits in its territory the selling of, and collecting of
orders for, silver jewellery in a doorstep-selling situation where such a
provision applies to all relevant traders in so far as it affects in the
same manner, in law and in fact, the marketing of domestic products
and that of products from other Member States. It is for the national
court to ascertain whether, having regard to the circumstances in the
main proceedings, the application of the national provision is liable to
prevent the access to the market of products from other Member
States or to impede that access more than it impedes the access to the
market of domestic products and,
if that is the case, to determine
whether the measure concerned is justified by an objective in the
general
in the
interest within the meaning given to that concept
Court's case-law or by one of the objectives listed in Article 30 EC,
and whether that measure is proportionate to that objective.

(1) OJ C 314, 18.12.2004.

Judgment of the Court (Sixth Chamber) of 23 February
2006 — Commission of the European Communities v
United Kingdom of Great Britain and Northern Ireland

(Case C-455/04) (1)

(Failure of a Member State to fulfil obligations — Directive
2001/55/EC — Asylum policy — Mass influx of displaced
persons — Temporary protection — Minimum standards —
Failure to transpose the directive within the prescribed
period)

temporary protection in the event of a mass influx of displaced
persons and on measures promoting a balance of efforts
between Member States in receiving such persons and bearing
the consequences thereof (OJ 2001 L 212, p. 12)

Operative part of the judgment

1. Declares that, by failing to adopt within the prescribed period the
laws, regulations and administrative provisions necessary to trans-
pose into domestic law Council Directive 2001/55/EC of 20 July
2001 on minimum standards for giving temporary protection in
the event of a mass influx of displaced persons and on measures
promoting a balance of efforts between Member States in receiving
such persons and bearing the consequences thereof, the United
Kingdom of Great Britain and Northern Ireland has failed to fulfil
its obligations under that directive;

2. Orders

the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

(1) OJ C 6, 08.01.2005.

Judgment of the Court (First Chamber) of 23 March 2006
(reference for a preliminary ruling from the Corte
cassazione) — Honyvem Informazioni
suprema di

Commerciali Srl v Mariella De Zotti

(Case C-465/04) (1)

(Independent commercial agents — Directive 86/653/EEC —
Entitlement of a commercial agent to an indemnity after
termination of the contract)

(2006/C 131/34)

Language of the case: Italian

(2006/C 131/33)

Language of the case: English

Referring court

Corte suprema di cassazione

Parties

Parties to the main proceedings

Applicant: Honyvem Informazioni Commerciali Srl

Applicant: Commission of the European Communities (repre-
sented by: C. O'Reilly, Agent)

Defendant: Mariella De Zotti

Defendant: United Kingdom of Great Britain and Northern
Ireland (represented by: C. White)

Re:

Re:

Failure of a Member State to fulfil its obligations — Failure to
transpose within the period prescribed Council Directive
2001/55/EC of 20 July 2001 on minimum standards for giving

Reference for a preliminary ruling — Corte Suprema di Cassa-
zione — Interpretation of Articles 17 and 19 of Council Direc-
tive 86/653/EEC of 18 December 1986 on the coordination of
the Member States relating to self-employed
the laws of
commercial agents (OJ 1986 L 382, p. 17) — Right of a
commercial agent to an indemnity or damages on termination
of contract