Case C-305/06: Action brought on 13 July 2006 — Commission of the European Communities v Hellenic Republic
Date: 2006-09-16
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, carriage of goods, combined transport, common transport policy, road transport

16.9.2006

EN

Official Journal of the European Union

C 224/23

Form of order sought

— set aside the judgment of the Court of First Instance of 3

May 2006 in Case T-439/04;

— annul Decision R 829/2002-4 of the Board of Appeal of 6

August 2004;

— order the respondent to pay the costs.

The judgment of the Court of First Instance was also based on
the use of a criterion according to which a mark made up of
descriptive components may be capable of registration if the
linguistic use and has
compound word has entered general
it then being necessary to
acquired a meaning of its own,
examine whether that word is not
itself descriptive. That
criterion is relevant in the context of Article 7(1)(c) of Regu-
lation No 40/94 for the question of a possible need to leave
the mark free, but it is not the criterion that applies to the
interpretation of Article 7(1)(b) on ascertaining distinctive char-
acter. By the use of that criterion, relevant in the context of
Article 7(1)(c) of Regulation No 40/94, as a basis of its decision
to dismiss the action, the Court of First Instance erred in law in
its interpretation of Article 7(1)(b) of Regulation No 40/94.

Pleas in law and main arguments

The appellant argues as follows in support of its appeal against
the above judgment of the Court of First Instance:

The Court of First Instance misinterpreted the requirements of
the Office's duty to examine of its own motion under the first
sentence of Article 74(1) of Regulation No 40/94. According to
the case-law, the examination by the competent authority for
trade marks must be stringent and full, in order to prevent, for
reasons of legal certainty and good administration, both unjus-
tified registrations of marks and unjustified objections to marks
eligible for registration. The Office's examination must be thor-
ough enough for the Office to be able to ascertain with
certainty, on the basis of that examination, whether there are
grounds for refusing registration under Article 7 of Regulation
No 40/94. However, neither the judgment nor the preceding
decisions of the respondent contained findings of fact as to the
allegedly descriptive character of
the
findings were confined to possible descriptive meanings of the
individual components ‘EURO’ and ‘HYPO’. No other findings
of fact were made on the descriptive character of the designa-
tion ‘EUROHYPO’ as a whole.

‘EUROHYPO’.

Instead,

The Court of First Instance misinterpreted the requirement of
distinctive character under Article 7(1)(b) of Regulation No
40/94 and wrongly refused to register the mark applied for. In
the case of a mark composed of words, possible distinctive
character can indeed be examined partially for each concept or
component separately, but must in every case depend on an
examination of the totality they form. Even if it is the case that
none of the components has distinctive character on its own,
that does not exclude the possibility that the combination of
them may have distinctive character.
In the present case,
however, the respondent confined itself, in the contested appeal
decision, to finding that the components ‘EURO’ and ‘HYPO’
were descriptive and the overall concept did not convey an
its parts,
impression that went beyond the sum of
overall
without explaining why the compound word EUROHYPO as a
whole could not distinguish the services of the appellant from
those of other undertakings.

Action brought on 13 July 2006 — Commission of the
European Communities v Hellenic Republic

(Case C-305/06)

(2006/C 224/44)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and K. Simonsson, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

The applicant asks the Court to:

— declare that, by preventing a haulier from using the nearest
suitable rail unloading station in order to complete, in the
context of combined transport operations between Member
States, the final road haulage legs forming an integral part
of combined transport operations, the Hellenic Republic
has failed to fulfil its obligations under Articles 2 and 4 of
Council Directive 92/106/EEC (1) on the establishment of
common rules for certain types of combined transport of
goods between Member States;

— order the Hellenic Republic to pay the costs.

C 224/24

EN

Official Journal of the European Union

16.9.2006

Pleas in law and main arguments

The actions of the Greek authorities which are characterised by
protectionism in favour of a branch of the national economy,
specifically in favour of the hauliers of Northern Greece, do not
justify in any circumstances interference with the exercise of an
economic activity safeguarded by legislation such as combined
transport within the meaning of Directive 92/106/EEC, which,
pursuant to Article 2 thereof, should have been applied from 1
July 1993.

with Paragraph 1(7) of the Bundeserziehungsgeldgesetz, only if
they are in an employment relationship involving non-minor
employment. That condition has to be satisfied by frontier
workers only, workers resident in Germany not being affected
by the rule: the latter are entitled to child-raising allowance
irrespective of the number of weekly hours of work performed
or the amount of pay. The German legislature thus assumes
that,
in the case of persons living in Germany, the minor
nature of their employment does not preclude classifying them
as workers.

(1) OJ L 368 of 17.12.1992, p. 38.

That requirement
Article 7(2) of Regulation (EEC) No 1612/68 of the Council.

is incompatible with Article 39 EC and

Even if workers in minor employment do not fall within the
personal scope of Regulation (EEC) No 1408/71 if the condi-
tions stated for Germany in Annex I C (now D) are not satisfied
in their case, that does not allow the conclusion that Regulation
(EEC) No 1612/68 is not material. The Court of Justice has
emphasised in its case-law that the exclusion of benefits from
the scope of Regulation (EEC) No 1408/71 does not free the
Member States from the obligation to make sure that no other
provision of Community law, in particular of Regulation (EEC)
No 1612/68, precludes the imposition of a residence condition.
With respect to child-raising allowance, the Court of Justice has
even expressly held that it constitutes a social advantage within
the meaning of Article 7(2) of Regulation (EEC) No 1612/68.

A person in minor employment can fall within the concept of
worker within the meaning of Article 39 EC. According to
settled case-law of the Court of Justice, the concept of worker
in Article 39 EC and Regulation (EEC) No 1612/68 has a Com-
munity law meaning and must not be interpreted narrowly.
The objective characteristic of an employment relationship is
that for a certain period of time a person performs services for
and under the direction of another person in return for which
he receives remuneration. The Court of Justice concludes that
part-time employment is not excluded from the scope of the
provisions on freedom of movement for workers.

A rule of national law which is not objectively justified and
proportionate to the aim pursued constitutes indirect discrimi-
nation if by its nature it is liable to affect migrant workers
rather than national workers and there is therefore a risk that
migrant workers will be particularly disadvantaged by it. In the
Commission's view, a requirement making payment of German
child-raising allowance to workers
in minor employment
dependent on their being resident in Germany is not objectively
justified and not proportionate, and thus infringes Article 39
EC and Article 7(2) of Regulation (EEC) No 1612/68.

(1) OJ, English Special Edition 1968 (II), p. 475.

Action brought on 14 July 2006 — Commission of the
European Communities v Federal Republic of Germany

(Case C-307/06)

(2006/C 224/45)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by V. Kreuschitz and I. Kaufmann-Bühler, acting as
Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare

that, by granting Erziehungsgeld (child-raising
allowance), on the basis of the national provisions of the
Bundeserziehungsgeldgesetz, to workers resident in another
Member State only if they are in an employment relation-
ship involving non-minor employment, with that condition
having to be satisfied by frontier workers only, the Federal
Republic of Germany has failed to fulfil
its obligations
under Article 39 EC and Article 7(2) of Regulation (EEC)
No 1612/68 (1);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under Article 7(2) of Regulation (EEC) No 1612/68, a worker
who is a national of a Member State is to enjoy, in the territory
of another Member State, the same social and tax advantages as
national workers.

Erziehungsgeld (child-raising allowance) is granted in Germany
in accordance
to workers resident in another Member State,