Case C-211/07: Action brought on 20 April 2007 — Commission of the European Communities v Ireland
Date: 2007-07-07
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, approximation of laws, indemnification, motor vehicle, personal accident insurance, third-party insurance

7.7.2007

EN

Official Journal of the European Union

C 155/11

The Hellenic Republic submits that the Court of First Instance
of the European Communities misinterpreted Article 15 of the
initial memorandum of understanding in holding that, prior to
signature of the additional memorandum, an agreement was
implicitly concluded by the partners on 24 February 1997 to
implement the project and in this way Article 15(1) essentially
was set aside or was amended.

Action brought on 20 April 2007 — Commission of the
European Communities v Ireland

(Case C-211/07)

(2007/C 155/21)

Language of the case: English

Reference for a preliminary ruling from the Bayerisches
Landessozialgericht (Germany) lodged on 20 April 2007 —
Chamier-Glisczinki
Deutsche
Petra
Angestellten-Krankenkasse

von

v

(Case C-208/07)

(2007/C 155/20)

Language of the case: German

Referring court

Bayerisches Landessozialgericht

Parties to the main proceedings

Appellant: Petra von Chamier-Glisczinki

Respondent: Deutsche Angestellten-Krankenkasse

Questions referred

1. Should Article 19(1)(a) — in conjunction, as the case may
be, with Article 19(2) — of Regulation (EEC) No 1408/71 (1)
be interpreted in the light of Article 18 EC and Articles 39 EC
in conjunction with Article 10 of Regulation
and 49 EC,
(EEC) No 1612/68 (2), as meaning that an employed or self-
employed person, or a member of that person's family, may
not receive any cash benefits or reimbursement provided on
behalf of the competent institution by the institution of the
place of residence, if there is provision under the law applic-
able to the institution of the place of residence for persons
insured by that institution to receive only cash benefits, and
not benefits in kind?

2. If there is no such entitlement to benefits in kind, is there, in
the light of Article 18 EC, or Articles 39 EC and 49 EC, any
entitlement to payment — subject to prior approval — by
the competent institution of the costs of in-patient care in a
care home situated in another Member State, in the amount
of the benefits payable in the competent Member State?

(1) OJ, English Special Edition 1971(II), p. 416.
(2) OJ, English Special Edition 1968(II), p. 475.

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell, Agent)

Defendant: Ireland

The applicant claims that the Court should:

— declare that in maintaining in force Sections 5.2 and 5.3 of
the Motor Insurance Agreement of 31st May 2004 and in
particular by i) excluding compensation to users of vehicles
if all vehicles involved are uninsured, and ii) limiting the
right to compensation in respect of persons in an uninsured
vehicle which did not cause the damage or injury,
the
Republic of Ireland has failed to fulfil its obligations under
Council Directive 84/5/EEC of 30th December 1983 on the
approximation of the laws of the Member States relating to
insurance against civil liability in respect of the use of motor
vehicles, and in particular Article 1(4), third subparagraph
thereof, and

— order Ireland to pay the costs.

Pleas in law and main arguments

Section 5.3 of the Agreement between the Minister of Transport
and the Motor Insurers' Bureau of Ireland of 31st May 2004
(‘the Agreement’) provides for the exclusion of compensation
for all drivers of uninsured vehicles, whether causing the acci-
dent or not), and thus goes beyond the permitted scope of the
exclusion laid down in the third subparagraph of Article 1(4) of
the directive.

As regards the situation of passengers travelling in uninsured
vehicles, section 5.2 of the Agreement provides for a general
exclusion from compensation in all cases where the injured
person ‘knew or ought reasonably to have known that there was not
in force an approved policy of insurance’. All passengers in unin-
sured vehicles are accordingly treated identically, regardless of
whether they were travelling in the vehicle causing the damage
or injury or not. This is in clear contradiction with the wording
of the third subparagraph of Article 1(4) of the directive, which

C 155/12

EN

Official Journal of the European Union

7.7.2007

expressly distinguishes between these two situations and limits
the exclusion of compensation in relation to those persons
(including the driver) in the vehicle that caused the damage or
injury.

Appeal brought on 23 April 2007 by Indorata-Serviços e
Gestão, Lda against the judgment delivered on 15 February
2007 in Case T-204/04 Indorata-Serviços e Gestão, Lda v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case C-212/07 P)

(2007/C 155/22)

Language of the case: German

Parties

Appellant:
T. Wallentin, Rechtsanwalt)

Indorata-Serviços e Gestão, Lda

(represented by:

the intended purpose of the goods in Class 22 to the relevant
public, and therefore in its entirety also shows a sufficiently
direct and genuine link to the goods concerned in Class 22, the
Court of First Instance misinterpreted and misapplied the provi-
sion at issue. In addition, HAIRTRANSFER cannot be descriptive
in respect of the rejected goods per se, since an ‘exclusively
descriptive’ function of goods is not appropriate for services (!)

By its third ground of appeal, the appellant relies on breach of
the principle of equal
treatment. Signs which are definitely
similar to the set of words at issue have been the subject of deci-
sions of OHIM on the registration of Community trade marks.
The appellant stated in the proceedings before the Court of First
Instance that the sign in the present case has distinctive char-
acter also on account of
the settled practice of OHIM, the
Austrian Patent Office and the Patent Offices of numerous
Member States.

Finally, by its fourth ground of appeal, the appellant relies on
breach of general principles of EC law. The judgement of the
Court of First Instance under appeal infringes the requirement
of objectivity and the principle of coherence in decision-making,
inasmuch as within one and the same application for a Com-
munity trade mark registration a distinction is made which
cannot be objectively applied. It is quite evident that ‘hair thick-
ening’ in Class 44 and rejected by the Office is included in hair
lengthening. Registration of the sign HAIRTRANSFER in respect
of ‘hair lengthening’ and rejection in respect of ‘hair thickening’
is therefore objectively unjustified.

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(1) OJ C 82 of 14.4.2007, p. 32.

Form of order sought

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

15 February 2007 in Case T-204/04 (1);

— order the respondent to pay the costs.

Pleas in law and main arguments

The appellant argues four grounds in support of
against the above judgment of the Court of First Instance.

its appeal

By its first ground of appeal, the appellant relies on infringe-
ment of Article 7(1)(b) of Regulation No 40/94. Contrary to the
observations of the Court, the term HAIRTRANSFER is capable
of registration since its fanciful nature gives it distinctive char-
acter and is therefore capable of distinguishing the goods and
services of the appellant from those of other undertakings.

for

Reference
from the
preliminary
Bundesgerichtshof (Germany) lodged on 24 April 2007 —
und
Verlag

Sächsisches Druck-

Schawe GmbH v

ruling

a

Verlagshaus AG

(Case C-215/07)

(2007/C 155/23)

Language of the case: German

By its second ground of appeal, the appellant relies on infringe-
ment of Article 7(1)(c) of Regulation No 40/94. By its finding
that the sign HAIRTRANSFER in respect of the goods applied
for in Class 8 has a sufficiently direct and genuine link to the
goods concerned and that the sign HAIRTRANSFER indicates

Referring court

Bundesgerichtshof