Case C-512/06 P: Appeal brought on 18 December 2006 by PTV Planung Transport Verkehr AG against the judgment delivered on 10 October 2006 in Case T-302/03 PTV Planung Transport Verkehr AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2007-02-24
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), appeal, equal treatment, official language

C 42/12

EN

Official Journal of the European Union

24.2.2007

Pleas in law and main arguments

Under Italian law, constructions sites which correspond to less
than 200 man-days and which do not involve work coming
within the scope of Annex II to the Directive are covered solely
by the coordination provisions contained in Article 7 of Decree
No 626/1994. That article, however,
imposes only a general
obligation of cooperation and coordination on employers
which, within the company or producer unit, assign work to
contracting undertakings or to self-employed persons. Accord-
ingly, it is not possible to conclude that the precise and detailed
provisions of Directive 92/57/EEC relating to the coordination
required during the drafting and execution phases of a project
can be regarded as being implemented by the article of the
Decree in question.

(1) OJ 1992 L 245, p. 6.
(2) OJ 1989 L 183, p. 1.

Reference for a preliminary ruling from the Commissione
tributaria regionale di Genova (Italy) lodged on 12 June
2006 — Agenzia Dogane Circoscrizione Doganale di
Genova v Euricom SpA

(Case C-505/06)

(2007/C 42/20)

Language of the case: Italian

Referring court

Commissione tributaria regionale di Genova

Parties to the main proceedings

the related implementing rules laid down in Regulation (EEC)
No 2913/92 (1), govern in any case the question whether the
products imported to make up for the products previously
exported as originating in Italy are to be regarded for
customs purposes as Community goods, and the question
whether they benefit accordingly from an exemption from
import duties, or do those provisions not apply in cases
where that operation — in respect of the products at issue,
as described in the preamble — concerns prior exports to
countries with which the European Community has entered
into related Agreements?

3. In the present case, does the fact

that Article [115](3),
referred to above, provides that the imported replacement
goods are to acquire the customs status of the prior-exported
Community goods have any effect on the operation in prac-
tice, in particular, on the Community origins of the prior-
exported Italian rice? If so, what is the relationship between
the customs regime of inward processing arrangements and
the rules of origin laid down in the Community Customs
Code and the Agreements with the CEECs?

4. In so far as Article 15(2) of the Agreements between the
European Community and the CEECs establishes that the
prohibition on refunds of customs duties relating to non-
Community raw materials used in the manufacture of
products exported with a EUR 1 certificate of origin (issued
by a Community customs authority) does not apply if those
products are instead retained for home use, must that provi-
sion be interpreted in such a way as to render Article 216 of
the Community Customs Code redundant?

(1) OJ 1992 L 302, p. 1.

Appeal brought on 18 December 2006 by PTV Planung
Transport Verkehr AG against the judgment delivered on
10 October 2006 in Case T-302/03 PTV Planung Transport
Verkehr AG v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

Applicant: Agenzia Dogane Circoscrizione Doganale di Genova

(Case C-512/06 P)

Defendant: Euricom SpA

Questions referred

1. On a proper construction of Article 216 of the Community
Customs Code, does that provision apply exclusively to
products obtained under the inward processing procedure
which incorporate non-Community goods, or does it form
the basis for a customs debt quite separate from other such
debts, justified by the need to avoid granting double relief
from customs duty?

2. In the context of an operation under the inward processing
arrangements, carried out
in accordance with the prior
export equivalence procedure (EX-IM), do Articles 115(1)
and 115(3) of the Community Customs Code, together with

(2007/C 42/21)

Language of the case: German

Parties

Appellant: PTV Planung Transport Verkehr AG (represented by:
Dr. F. Nielsen, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the
Internal Market

24.2.2007

EN

Official Journal of the European Union

C 42/13

Form of order sought

— Set aside the judgment of the Court of First Instance of the
European Communities (Second Chamber) of 10 October
2006 in Case T-302/03;

— Order the defendant and respondent to pay the costs.

Pleas in law and main arguments

Appeal brought on 18 December 2006 by Commission of
the European Communities against the judgment of the
Court of First Instance (Fourth Chamber, Extended Compo-
sition) delivered on 27 September 2006 in Case T-168/01:
GlaxoSmithKline Services Unlimited, formerly Glaxo Well-
come plc v Commission of the European Communities

(Case C-513/06 P)

(2007/C 42/22)

Language of the case: English

and direct

Instance wrongly considered that

The judgment of the Court of First Instance of 10 October
2006 infringes Article 7(1)(b) of Regulation No 40/94 (1). The
Court of First
there is a
‘specific
relationship’ between the designation
‘map&guide’ and the ‘computer software’ product and ‘computer
programming’ services and that the designation ‘map&guide’
that product and
allows for an ‘immediate identification’ of
those services (paragraph 40 of the judgment). Furthermore, the
Court of First Instance erred in law when it assumed that the
sign ‘map&guide’ enables the relevant public ‘to establish imme-
diately, and without reflection, a specific and direct relationship
software [product] and the computer
with the computer
programming services for computers providing the function of
(city) maps and (travel) guides’ (paragraph 47 of the judgment).
Finally, it is claimed in the judgment that the ‘computer soft-
ware’ product group and the ‘computer programming’ services
group may also include goods and services which have the func-
tion of providing (city) maps and (travel) guides.

The interpretation of Article 7(1)(b) of Regulation No 40/94
adopted by the Court of First Instance in the judgment is incor-
rect. Contrary to the assumption of the Court of First Instance
the mark applied for does not lack distinctive character. The
mark applied for is not descriptive. A ‘specific and direct rela-
tionship’ and an ‘immediate identification’ may only be assumed
to exist if the term at issue is one which directly designates the
product or services in question or describes characteristics
which ‘attach to’ the particular goods or services immediately or
per se. That does not apply to the designation ‘map&guide’. It
the
neither designates the ‘computer software’ product or
‘computer programming’ services directly nor makes a statement
regarding an essential characteristic which is immediately asso-
ciated with the product or services. The public does not have
the opportunity ‘to establish immediately, and without reflec-
tion, a specific and direct relationship with the computer soft-
ware [product] and the computer programming services for
computers providing the function of (city) maps and (travel)
guides’. Furthermore, neither
‘computer programming’
services nor the ‘computer software’ product can ‘provide’ the
function of a (city) map or a (travel) guide.

the

The connection which the Court of First Instance in the judg-
ment assumed to exist between the designation ‘map&guide’
and the specifically referred to ‘computer software’ product and
‘computer programming’ services is not present at the outset,
but is only artificially contrived.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Parties

Appellant: Commission of the European Communities (repre-
sented by: T. Christoforou, F. Castillo de la Torre et E. Gippini
Fournier, Agents)

Other parties to the proceedings: European Association of Euro
Pharmaceutical Companies (EAEPC), Bundesverband der Arznei-
mittel-Importeure eV, Spain Pharma, SA, Asociación de exporta-
dores españoles de productos farmacéuticos (Aseprofar), GlaxoS-
mithKline Services Unlimited, anciennement Glaxo Wellcome
plc

Form of order sought

The applicant claims that the Court should:

— set aside points 1 and 3 to 5 of the operative part of the
judgment of the Court of First Instance of 27 September
2006 in Case T-168/01, GlaxoSmithKline Services Ltd. v.
Commission of the European Communities;

— give final judgment in the matter by dismissing the applica-

tion for annulment in Case T-168/01 as unfounded;

— order the Applicant in Case T-168/01 to pay the costs of
the Commission arising from that case and from the present
appeal.

Pleas in law and main arguments

The Commission agrees with the conclusions of the Court of
First Instance concerning the reasoning of the contested deci-
sion; the existence of an agreement between undertakings; the
alleged misuse of powers and the alleged infringement of the
principle of subsidiary and of Article 43 EC.

‘effect’

the Commission contests

Concerning the part of the judgment dealing with existence of
an anticompetitive
the
reasoning followed by the Court of First Instance. It maintains
that the Court's analysis confirming the existence of the restric-
tive ‘effects’ constitutes in reality an analysis of the restrictive
‘object’ of the agreement having due regard to the legal and
economic context, and should have led the Court to confirm
the Decision's finding that the agreement had an anticompetitive
the
object. Concerning the other
Commission has serious objections in particular regarding: the
definition of the relevant market; the dismissal of the Commis-
sion's findings under Article 81(1)(d) with the legally erroneous
argument that the different prices were charged on different
geographic markets; and a number of other findings made in
the in the judgment where the Court substitutes its own

findings about

‘effects’,