Case C-61/08: Action brought on 18 February 2008 — Commission of the European Communities v Hellenic Republic
Date: 2008-02-18
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, discrimination on the basis of nationality, higher education, liberal profession, notary, recognition of diplomas, vocational training

C 92/20

EN

Official Journal of the European Union

12.4.2008

Reference for a preliminary ruling from the Cour de
Cassation (France) lodged on 15 February 2008 — Copad
SA v 1. Christian Dior couture SA, 2. Vincent Gladel,
acting as receiver of Société industrielle de lingerie (SIL),
3. Société industrielle de lingerie (SIL)

Action brought on 18 February 2008 — Commission of
the European Communities v Hellenic Republic

(Case C-61/08)

(2008/C 92/38)

Language of the case: Greek

(Case C-59/08)

(2008/C 92/37)

Parties

Language of the case: French

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and H. Støvlbæk)

Referring court

Cour de Cassation (France)

Parties to the main proceedings

Claimant: Copad SA

Defendants: 1. Christian Dior couture SA, 2. Vincent Gladel,
acting as
receiver of Société industrielle de lingerie (SIL),
3. Société industrielle de lingerie (SIL)

Questions referred

1. Must Article 8(2) of First Council Directive No 89/104/EEC
of 21 December 1988 to approximate the laws of
the
Member States relating to trade marks (1) be interpreted as
meaning that the proprietor of a trade mark can invoke the
rights conferred by that trade mark against a licensee who
contravenes a provision in the licensing contract prohibiting,
on grounds of the trade mark's prestige, sale to discount
stores?

2. Must Article 7(1) of that directive be interpreted as meaning
that a licensee who puts goods bearing a trade mark on the
market in the European Economic Area in disregard of a
provision of the licensing contract prohibiting, on grounds
of the trade mark's prestige, sale to discount stores, does so
without the consent of the trade mark proprietor?

3. If not, can the proprietor invoke such a provision to oppose
the goods, on the basis of

further commercialisation of
Article 7(2) of that directive?

(1) OJ 1989 L 40, p. 1.

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— declare that, by laying down and maintaining in operation
Article 19(1) of the Notaries' Code (Law 2830/2000), the
Hellenic Republic is in breach of its obligations pursuant to
the Treaty establishing the European Community, in particu-
lar under Articles 43 and 45 EC and Council Directive
89/48/EEC (1) of 21 December 1988 on a general system
for the recognition of higher-education diplomas awarded
on completion of professional education and training of at
least three years' duration;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. The Greek authorities maintain that the activities of notaries
are excluded from the application of Article 43 EC because
they fall with the scope of application of Article 45 EC. They
rely upon the status of notaries as public officials who confer
on a notarised document increased evidential and executory
force, similar to that of a judicial decision, with the use of
the State seal, the status of notaries as judicial officials, their
role as legal advisers, and a whole series of other activities.
They also rely on the principle of
territoriality, whereby
Greek notaries are not permitted to establish themselves in
other districts.

2. The Commission considers that Article 43 EC constitutes
one of the fundamental provisions of the Community and
has direct application in the Member States from the end of
the transitional period. It is aimed at ensuring the benefit of
national treatment to every citizen of a Member State who
establishes him or herself in another Member State, even as a
to exercise a liberal profession and
secondary residence,
prohibits any discrimination on the ground of nationality
created by national legislation.

3. The derogation to freedom of establishment provided for in
the first paragraph of Article 45 must be restricted to activ-
ities which in themselves
‘are directly and specifically
connected with the exercise of official authority’ (2). In the
Commission's view, none of the special features or activities
relied upon by the Greek authorities constitute a direct and
specific connection with the exercise of official authority as
referred to in the case-law of the Court of Justice of the
European Communities and accordingly could not justify the
nationality requirement.

12.4.2008

EN

Official Journal of the European Union

C 92/21

4. The Court of Justice considers that the criterion of being
‘directly and specifically connected’ does not cover the exer-
cise of ancillary and preparatory duties in relation to those of
the public authority, which takes the final decision. In addi-
tion, the Court of Justice, examining the regime of firms
supplying private security, has held that in order for them to
be directly and specifically connected to the exercise of offi-
cial authority, those involved had to have been given ‘powers
of constraint’ (3), which is not the case in this instance.

5. As is clear from an examination of the case-law of the Court
of Justice, the exercise of official authority should not be
confused with an activity which is merely carried out on
behalf of the public interest. The mere fact that an individual
or an undertaking is to some degree bound to act on behalf
of the public interest is not sufficient to characterise that
function as the exercise of official authority.

6. According to the Commission, Directive 89/48 applies to the
profession of notary in so far as it
is a profession the
required qualifications for which are laid down by legislation,
and its application cannot be circumvented by citing the
assigning of sovereign rights to notaries for the following
reasons:

(a) such assignment does not constitute a direct and specific
connection with the exercise of official authority which
would justify imposition of
the nationality condition;
and

(b) even supposing that notaries could be regarded as proper
civil servants, which they are not, there is no relationship
of dependency and salary as public servants and indeed
they would not be exempted from the application of that
directive, since that directive applies also, in principle, to
the public service.

(1) OJ L 19 of 24.1.1989, p. 16.
(2) Case C-114/97 Commission v Spain [1998] ECR I-6717, paragrap 35.
(3) Ibid., paragraph 37.

Parties to the main proceedings

Applicant: Virginie Pontin

Defendant: T-Comalux S.A.

Question referred

1. Are Articles 10 and 12 of Directive 92/85/EEC of
19 October 1992 on the introduction of measures to encou-
rage improvements in the safety and health at work of preg-
nant workers and workers who have recently given birth or
are breastfeeding (tenth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC (1)) to be
interpreted as not precluding the national
legislature from
making a legal action brought by a pregnant employee who
has been dismissed during her pregnancy subject to time-
limits fixed in advance, such as the eight-day period laid
down in the second subparagraph of Article [L.] 337(1) of
the [Luxembourg] Code du Travail or the fifteen-day period
laid down in the fourth subparagraph of that provision?

2. If the answer to the first question is in the affirmative, are
the eight- and fifteen-day periods to be regarded as being too
short to allow a pregnant employee who has been dismissed
during her pregnancy to take legal proceedings to safeguard
her rights?

3. Is Article 2 of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treat-
ment for men and women as regards access to employment,
vocational
training and promotion, and working condi-
tions (2), to be interpreted as not precluding the national
legislature from denying a pregnant employee who has been
dismissed during her pregnancy the right to bring an action
for damages for wrongful dismissal, which is reserved, under
Articles L. 124-11(1) and (2) of the Code du Travail, to other
employees who have been dismissed?

(1) OJ 1992 L 348, p. 1.
(2) OJ 1976 L 39, p. 40.

Reference for a preliminary ruling from the Tribunal du
Travail d'Esch-sur-Alzette, Grand Duchy of Luxembourg
lodged on 18 February 2008 — Virginie Pontin v
T-Comalux S.A.

Action brought on 19 February 2008 — Commission of
the European Communities v Republic of Estonia

(Case C-63/08)

(2008/C 92/39)

Language of the case: French

(Case C-68/08)

(2008/C 92/40)

Language of the case: Estonian

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: E. Randvere and K. Simonsson, acting as Agents)

Tribunal du travail d'Esch-sur-Alzette

Defendant: Republic of Estonia