Case C-142/07: Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 22 of Madrid (Spain) of 12 March 2007 — Asociación Ecologistas en Acción-CODA v Ayuntamiento de Madrid
Date: 2007-06-09
Institutions: Court of Justice
Subjects: environmental impact, interpretation of the law, project evaluation, public works, urban road

C 129/4

EN

Official Journal of the European Union

9.6.2007

interpretation by the Court that there is no need to consult the
official's previous immediate hierarchical superior. As regards
those two issues, the contested judgment suffers from numerous
defects in the reasoning of the Court, which also misinterpreted
the scope of several documents submitted to it by the appellant.

Appeal brought on 23 February 2007 by Ferrero
Deutschland GmbH against the judgment delivered by the
Court of First Instance (Third Chamber) on 15 December
2006 in Case T-310/04 Ferrero Deutschland GmbH v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM) and Cornu SA Fontain

(Case C-108/07 P)

(2007/C 129/05)

Language of the case: French

Parties

Appellant:
M. Schaeffer, Rechtsanwalt)

Ferrero Deutschland GmbH (represented

by:

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Cornu SA
Fontain

put forward in its judgment should have led to the conclusion
that those marks have an average degree or even high degree of
similarity. Fourth, the Court failed to take sufficient account of
the documents submitted by the appellant in order to highlight
the highly distinctive character of the mark ‘Ferrero’. Finally, in
its assessment of
the Court
committed an error of law by failing to take account of the
many factors mentioned in the seventh recital in the preamble
to Regulation (EC) No 40/94.

the likelihood of confusion,

(1) OJ 1994 L 11, p. 1.

Reference for a preliminary ruling from the Juzgado
Contencioso-Administrativo No 22 of Madrid (Spain) of
12 March 2007 — Asociación Ecologistas en Acción-CODA
v Ayuntamiento de Madrid

(Case C-142/07)

(2007/C 129/06)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo No 22 of Madrid

Form of order sought

Parties to the main proceedings

— set aside the judgment of the Court of First Instance (Third
Chamber) of 15 December 2006 in Case T-314/04 Ferrero
Deutschland v OHIM — Cornu SA Fontain;

Applicant: Spanish Government and the Autonomous Com-
munity of Madrid

— order OHIM and the intervener to pay the costs of the

Defendant: Ayuntamiento de Madrid

proceedings.

Pleas in law and main arguments

Questions referred

The appellant puts forward a single plea in law in support of its
appeal, alleging an infringement of Community law by the
Court of First Instance and, more specifically, that it incorrectly
interpreted Article 8(1)(b) of Council Regulation (EC) No 40/94
of 20 December 1993 on the Community trade mark (1). In
that connection, the applicant puts forward the following five
arguments.

First, the Court failed to take account of the fact that the salted
and sweet goods concerned are produced and marketed to a
relevant extent by the same undertakings, including the inter-
vener itself. Second, the Court committed an error of law by
holding that
the goods concerned are only slightly similar,
whereas, in this case, it should have found at least an average
degree of similarity. Third, the Court committed an error of law
by attributing only ‘a certain degree of similarity’ to the marks
‘Ferrero’ and ‘Ferro’, whereas the arguments that the Court itself

assessments

1) Are the procedural requirements relating to environmental
impact
from Council Directive
arising
85/377/EEC (1), as amended by Council Directive 97/11/EC,
of 3 March 1977 applicable to urban road projects, having
regard to their nature, size and effect on densely populated
areas or on landscapes of historical, cultural or archaeolo-
gical significance?

assessments

2) Are the procedural requirements relating to environmental
from Council Directive
arising
impact
85/377/EEC, as amended by Council Directive 97/11/EC, of
3 March 1997 (2)applicable to the projects which form the
subject-matter of
appeal procedure,
having regard to their nature, the nature of the road on
which they are to be carried out, their characteristics, size,
effect on the surrounding area, density of population, budget
and the possible splitting up of a larger project which
contemplates similar works on the same road?

administrative

this

9.6.2007

EN

Official Journal of the European Union

C 129/5

3) Are the criteria set out in Case C-332/04 (3) Commission v
Spain, and specifically those contained in paragraphs 69
to 88 of the judgment, applicable to the projects which are
the subject-matter of these proceedings, having regard to
their nature, the nature of the road on which they are to be
carried out,
effect on the
characteristics,
surrounding area, budget and the possible splitting up of a
larger project which contemplates similar works on the same
road, such that there was a requirement to submit them to
the prescribed environmental impact assessment procedure?

their

size,

4) Do the relevant administrative records and, specifically, the
studies and reports contained therein, demonstrate that the
Spanish authorities have, in practice, complied with the obli-
gations arising from Council Directive 85/377/EEC, as
amended by Council Directive 97/11/EC, relating to the
environmental assessment of
the projects which are the
subject-matter of these proceedings, even if the project was
not
formally subjected to the prescribed environmental
assessment procedure set out in the Directive?

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of
the effects of certain public and private projects on the environment
(OJ L 175, 5.7.1985, p. 40).

(2) Council Directive 97/11/EC of 3 March 1997 amending Directive
85/337/EEC on the assessment of the effects of certain public and
private projects on the environment (OJ L 73, 14.3.1997, p. 5).
(3) Commission of the European Communities v Kingdom of Spain [2006]

ECR I-40.

Action brought on 15 March 2007 — Commission of the
European Communities v Republic of Poland

(Case C-149/07)

(2007/C 129/07)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

Pleas in law and main arguments

Article 28 EC prohibits quantitative restrictions on imports
between Member States and all measures having equivalent
effect. The Commission submits that, by failing to establish a
specific legal framework regarding the grant of authorisations
for the placing on the market of plant protection products
which are imported from other Member States, where those
products have already obtained authorisation to be placed on
the market, and which are identical (within the meaning of the
case-law of the Court of Justice of the European Communities)
to products already placed on the market
the
in Poland,
its obligations under
Republic of Poland has failed to fulfil
Article 28 EC.

According to the Court of Justice's case-law, in the absence of
trading rules enacted by Member States
harmonisation ‘all
which are capable of hindering, directly or indirectly, actually or
potentially,
intra-Community trade are to be considered as
measures having an effect equivalent to quantitative restrictions’.
The Court has also held that national rules or practices which
result in imports being channelled in such a way that only
certain traders can effect
these imports, whereas others are
prevented from doing so, constitute a measure having an effect
equivalent
to a quantitative restriction. A procedure under
which prior authorisation is required for the sale of imported
products must be established by means of rules which are of
general application and which also explicitly bind the national
authorities. That procedure must be easily accessible and carried
out within a reasonable time. It is necessary for such general
rules to exist in national
law because they enable citizens to
exercise the rights accorded to them by Community law.

the two-month period set

While the new proposal
for legislative amendment may be
accepted by the Commission, it had not entered into force on
in the Commission's
expiry of
reasoned opinion calling for elimination of the infringement. In
accordance with settled case-law,
the question whether a
Member State has failed to fulfil its obligations must be deter-
mined by reference to the legal situation prevailing in that State
at the end of the period laid down by the Commission in the
reasoned opinion. The Court cannot take account of any subse-
quent changes in national law.

a

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 21 March 2007 —
Finanzamt für Körperschaften III in Berlin v Krankenheim
Ruhesitz am Wannsee-Seniorenheimstatt GmbH

ruling

(Case C-157/07)

(2007/C 129/08)

Language of the case: German

— declare that, by failing to establish a specific legal framework
import of
for the grant of authorisations for the parallel
the Republic of
plant protection products into Poland,
Poland has failed to fulfil its obligations under Article 28 EC;

Referring court

— order the Republic of Poland to pay the costs.

Bundesfinanzhof