Case C-531/07: Reference for a preliminary ruling from the Obersten Gerichtshof (Austria) lodged on 29 November 2007 — Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH
Date: 2007-11-29
Institutions: Court of Justice
Subjects: book trade, free movement of goods, import, interpretation of the law, prices

C 37/14

EN

Official Journal of the European Union

9.2.2008

2. If the first question is answered in the negative:

Is the applicant to be regarded as acting in bad faith if he
applies for the trade mark in order to be able to prevent a
competitor from continuing to use the sign, where, at the
time he files his application, he knows or ought to know
that by using an identical or similar sign for the same goods
or services, or goods or services which are so similar as to be
the competitor has already
capable of being confused,
acquired ‘valuable property rights’?

Santa Cita, Vila Nova de Gaia/Douro Nordeste, Vila Real
de Santo António, Viana do Castelo-Cidade, Vila Franca
de Xira and Vila Real, as provided for by Article 4 of
that directive,

the Portuguese Republic has failed to fulfil
its obligations
under Council Directive 91/271/EEC of 21 May 1991
concerning urban waste-water treatment;

— order the Portuguese Republic to pay the costs.

3. If either the first or the second question is answered in the

affirmative:

Pleas in law and main arguments

Is bad faith excluded if
the applicant's sign has already
obtained a reputation with the public and is therefore
protected under competition law?

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

Action brought on 29 November 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-530/07)

(2008/C 37/18)

Language of the case: Portuguese

The Member States were to ensure, at the latest by 31 December
2000, that all agglomerations with a population equivalent (p.e.)
of more than 15 000 and, at the latest by 31 December 2005,
that all agglomerations with a p.e. of between 2 000 and
15 000 were provided with collecting systems for urban waste
water.

Article 4 of the Directive provides as follows:

‘1. Member States shall ensure that urban waste water
entering collecting systems shall before discharge be subject
to secondary treatment or an equivalent
treatment as
follows:

— at the latest by 31 December 2000 for all discharges

from agglomerations of more than 15 000 p.e.,

— at

the latest by 31 December 2005 for all dis-
charges from agglomerations of between 10 000 and
15 000 p.e.,

— at the latest by 31 December 2005 for discharges to
from agglomerations of

fresh water and estuaries
between 2 000 and 10 000 p.e.

Parties

Applicant: Commission of the European Communities (repre-
sented by S. Pardo Quintillán and G. Braga da Cruz, acting as
Agents)

…’

(1) OJ L 135, p. 40.

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing

(a) to provide the agglomerations of Angra do Heroismo,
Bacia do Rio Uima (Fiães de S. Jorge), Costa de Aveiro,
Covilhã, Espinho/Feira, Fátima, Ponta delgada, Ponte de
Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila
Real de Santo António, Viana do Castelo-Cidade and
Vila Real with collecting systems, as provided for by
Article 3 of Council Directive 91/271/EEC (1) of 21 May
1991 concerning urban waste-water treatment, and

(b) to subject to secondary treatment or an equivalent treat-
ment urban waste water from the agglomerations of
Alta Nabão, Alverca, Bacia do Rio Uima (Fiães de S.
Jorge), Carvoeiro, Costa da Caparica/Trafaria, Costa de
Aveiro, Costa Oeste, Covilhã, Espinho/Feira, Fátima,
Fundão/Alçaria, Lisbon, Matosinhos, Milfontes, Moledo/
Âncora/Afife, Nazaré/Famalicâo, Pedrógão Grande, Ponta
delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde,

Reference for a preliminary ruling from the Obersten
Gerichtshof (Austria) lodged on 29 November 2007 —
Fachverband der Buch- und Medienwirtschaft v LIBRO
Handelsgesellschaft mbH

(Case C-531/07)

(2008/C 37/19)

Language of the case: German

Referring court

Obersten Gerichtshof

9.2.2008

EN

Official Journal of the European Union

C 37/15

Parties to the main proceedings

Applicant: Fachverband der Buch- und Medienwirtschaft

Defendant: LIBRO Handelsgesellschaft mbH

Questions referred

1. Is Article 28 EC to be interpreted as meaning that

it
precludes the application per se of national provisions which
oblige only importers of German language books to fix and
to publish a retail price for books imported into Austria
which is binding on the retailer, where the importer cannot
fix a retail price which is lower than the retail price fixed or
recommended by the publisher for the State in which the
book is published, or lower than the retail price recom-
mended for his national territory by a publisher whose seat
is not in the territory of a Contracting Party to the Agree-
ment on the European Economic Area (EEA), less any value
added tax such price includes, but, by way of exception,
permit an importer who purchases in the territory of a
Contracting Party to the EEA at a price lower than the usual
purchase prices to sell at less than the price fixed or recom-
mended by the publisher for the State of publication — or
in the case of re-imports the price fixed by the Austrian
publisher — by an amount proportionate to the commercial
advantage he has obtained?

2. If the first question is answered in the affirmative:

Is the national statutory obligation to sell books at the fixed
price which, according to the first question, is per se incom-
patible with Article 28 EC — in any event on the basis that
it constitutes selling arrangements which infringe free move-
ment of goods — justified by reference to Article 30 or
Article 151 EC, on the basis that its purpose is, very gener-
ally, described as the need to have regard to ‘the status of
books as cultural assets, consumers'
interest in reasonable
prices for books, and the commercial characteristics of the
book trade’, for example having regard to a general interest
in encouraging the production of books, a diversity of titles
at regulated prices, and a diversity of bookshops, notwith-
standing the lack of empirical data which could prove that a
statutory obligation to sell books at the fixed price is a
suitable means for achieving the intended purposes?

3. If the first question is answered in the negative:

Is the national statutory obligation to sell books at the fixed
price, as described in the first question, compatible with Arti-
cles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in
terms of time and substance there was a seamless transition
from them to the previous contractual obligation on book-
sellers to sell at prices fixed by publishers for published
works
(the 1993 reverse collection scheme), and they
replaced this contractual scheme?

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria) lodged on 29 November 2007 —
and Thomas Rabitsch v Gisela
Falco Privatstiftung

Weller-Lindhorst

(Case C-533/07)

(2008/C 37/20)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Falco Privatstiftung, Thomas Rabitsch

Defendant: Gisela Weller-Lindhorst

Questions referred

1. Is a contract under which the owner of an incorporeal right
grants the other contracting party the right to use that right
(a licence agreement) a contract regarding ‘the provision of
services’ within the meaning of Article 5(1)(b) of Council
Regulation (EC) No 44/2001 of 22 December 2000 on juris-
diction and the recognition and enforcement of judgments in
civil and commercial matters (the Brussels I Regulation) (1)?

2. If Question 1 is answered in the affirmative:

2.1. Is the service provided at each place in a Member State
where use of the right is allowed under the contract
and also actually occurs?

2.2. Or is the service provided where the licensor is domi-
ciled or, as the case may be, at the place of the licensor's
central administration?

2.3. If Question 2.1 or Question 2.2 is answered in the affir-
mative, does the court which thereby has jurisdiction
also have the power to rule on royalties which result
from use of the right in another Member State or in a
third country?

3. If Question 1 or Questions 2.1 and 2.2 are answered in the
negative: Is jurisdiction as regards payment of royalties under
Article 5(1)(a) and (c) of the Brussels I Regulation still to be
determined in accordance with the principles which result
from the case-law of the Court of Justice on Article 5(1) of
the Convention of 27 September 1968 on Jurisdiction and
the Enforcement of
Judgments in Civil and Commercial
Matters (the Brussels Convention)?

(1) OJ 2001 L 12, p. 1.