Case C-302/05: Judgment of the Court (Second Chamber) of 26 October 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2000/35/EC — Article 4(1) — Retention of title — Enforceability)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, commercial contract, ownership, payment

C 326/16

EN

Official Journal of the European Union

30.12.2006

Operative part of the judgment

1. Article 7(1) of Council Regulation (EEC) No 857/84 of 31
March 1984 adopting general rules for the application of the levy
referred to in Article 5c of Regulation (EEC) No 804/68 in the
milk and milk products sector, as amended by Council Regulation
(EEC) No 590/85 of 26 February 1985, and points 2, 3 and 4
of the first subparagraph of Article 7 of Commission Regulation
(EEC) No 1546/88 of 3 June 1988 laying down detailed rules
for the application of the additional levy referred to in Article 5c of
Regulation (EEC) No 804/68 are to be interpreted as meaning
that on the return of a leased part of a holding the corresponding
reference quantity for that part cannot pass to the landlord if he is
not a milk producer, does not intend to carry out such an activity
and does not intend to grant a lease for the undertaking concerned
to a milk producer.

2. Article 7(1) of Regulation No 857/84, as amended by Regulation
No 590/85, and point 4 of the first subparagraph of Article 7 of
Regulation No 1546/88 preclude the reference quantity from being
retained by the tenant on the ending of a rural lease, where the
lease has been voluntarily brought to an end.

(1) OJ C 229, 17.09.2005.

Article 5(1) and (3) of First Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member States
relating to trade marks (OJ 1989 L 40, p. 1) — Right of the
proprietor of a trade mark to prohibit the transit of goods
bearing an identical sign across the territory of a Member State
where that mark is protected — No protection in the country of
destination

Operative part of the judgment

1. Article 5(1) and (3) of First Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member States
relating to trade marks is to be interpreted as meaning that the
proprietor of a trade mark can prohibit
through a
Member State in which that mark is protected (the Federal Republic
of Germany in the present case) of goods bearing the trade mark
and placed under the external transit procedure, whose destination
is another Member State where the mark is not so protected
(Ireland in the present case), only if those goods are subject to the
act of a third party while they are placed under the external transit
procedure which necessarily entails their being put on the market in
that Member State of transit.

the transit

2. It is in that regard,

in principle, irrelevant whether goods whose
destination is a Member State come from an associated State or a
third country, or whether those goods have been manufactured in
the country of origin lawfully or in infringement of the existing
trade mark rights of the proprietor in that country.

Judgment of the Court (Second Chamber) of 9 November
2006 (reference for a preliminary ruling from the Bundes-
gerichtshof — Germany) — Montex Holdings Ltd v Diesel
SpA

(1) OJ C 243, 01.10.2005.

(Case C-281/05) (1)

(Trade marks — Directive 89/104/EEC — Right of the
proprietor of a trade mark to prohibit the transit of goods
bearing an identical sign through the territory of a Member
State in which the mark enjoys protection — Unlawful manu-
facture — Associated State)

(2006/C 326/31)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Montex Holdings Ltd

Defendant: Diesel SpA

Re:

Judgment of the Court (Second Chamber) of 26 October
the European Communities v
2006 — Commission of

Italian Republic

(Case C-302/05) (1)

(Failure of a Member State to fulfil obligations — Directive
2000/35/EC — Article 4(1) — Retention of title — Enforce-
ability)

(2006/C 326/32)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and D. Recchia, Agents)

Reference for a preliminary ruling — Bundesgerichtshof —
Interpretation of Articles 28, 29 and 30 of the EC Treaty and of

Defendant:
Agent, and M. Massella Ducci Teri, avocat)

Italian Republic (represented by:

I.M. Braguglia,

30.12.2006

EN

Official Journal of the European Union

C 326/17

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 4(1) of Directive 2000/35/EEC of the European Parlia-
ment and of the Council of 29 June 2000 on combating late
payment in commercial transactions (OJ 2000 L 200, p. 35) —
Retention of title — National legislation providing that, in order
to be enforceable against creditors of the purchaser, a retention
of title clause must be confirmed on individual
invoices for
successive supplies bearing a date that is prior to any attach-
ment procedure

of measures regulating the prices of medicinal products for
human use and their inclusion in the scope of national health
insurance systems (OJ 1989 L 40, p. 8) — Concept of ‘positive
list’ — National rules providing for the establishment of a list of
medicinal products, normally available without a prescription
and non-refundable, which may exceptionally be covered by the
national health insurance system in cases where they represent
standard treatment for certain serious ailments — Obligation to
take a decision concerning inclusion on the list within a speci-
fied period, to set out reasons for refusal and to inform the
applicant of the means of redress available to him

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 229, 17.09.2005.

Judgment of the Court (Fifth Chamber) of 26 October
2006 (reference for a preliminary ruling from the Sozial-
gericht Köln — Germany) — G. Pohl-Boskamp GmbH &
Co. KG v Gemeinsamer Bundesausschuss

Operative part of the judgment

1. Council Directive 89/105/EEC of 21 December 1988 relating to
the transparency of measures regulating the prices of medicinal
products for human use and their inclusion in the scope of national
health insurance systems is to be interpreted as precluding rules of a
Member State which, following the exclusion of non-prescription
medicinal products from the range of benefits provided by the
national health system, empower an authority under that system to
adopt rules derogating from that exclusion in respect of certain
medicines without making provision for a procedure under Article 6
(1) and (2) of that directive.

2. Article 6(2) of Directive 89/105 is to be interpreted as meaning
that it confers on the manufacturers of medicinal products affected
by a decision which allows the coverage by the health insurance
system of certain medicinal products containing active ingredients
referred to therein the right
to a reasoned decision mentioning
remedies, even though the rules of the Member State make no
provision for any corresponding procedure or remedies.

(Case C-317/05) (1)

(1) OJ C 281, 12.11.2005.

(Directive 89/105/EEC — Article 6(1) and (2) — Positive list
— Obligation to state reasons and provide information
concerning remedies)

(2006/C 326/33)

Language of the case: German

Referring court

Sozialgericht Köln

Parties to the main proceedings

Applicant: G. Pohl-Boskamp GmbH & Co. KG

Defendant: Gemeinsamer Bundesausschuss

Judgment of the Court (Second Chamber) of 9 November
2006 — Commission of the European Communities v Joël
De Bry

(Case C-344/05 P) (1)

(Appeal — Official — Reporting procedure — Career devel-
opment report — 2001/2002 reporting period — Rights of
the defence — Article 26, second paragraph, of the Staff
Regulations)

Intervening parties: AOK-Bundesverband KdöR,
IKK-Bundesver-
band, Bundesverband der Betriebskrankenkassen (BKK), Bundes-
verband der landwirtschaftlichen Krankenkassen, Verband der
Angestellten-Krankenkassen
AEV-Arbeiter-Ersatzkassen-
eV,
Verband eV, Bundesknappschaft, Seekrankenkasse, Bundesrepu-
blik Deutschland

Parties

(2006/C 326/34)

Language of the case: French

Re:

Reference for a preliminary ruling — Sozialgericht Köln —
Interpretation of Article 6(1) and (2) of Council Directive
89/105/EEC of 21 December 1988 relating to the transparency

Appellant: Commission of the European Communities (repre-
sented by: L. Lozano Palacios and M.H. Kraemer, Agents)

Other party to the proceedings: Joël De Bry (represented by: S.
Orlandi, avocat)