Case C-110/08: Action brought on 11 March 2008 — Commission of the European Communities v Republic of Austria
Date: 2008-03-11
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, biotope, environmental protection, exchange of information, protected species

C 158/8

EN

Official Journal of the European Union

21.6.2008

2. Orders the Portuguese Republic to pay the costs.

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 170, 21.7.2007.

(1) OJ C 235, 6.10.2007.

Judgment of the Court (Seventh Chamber) of 8 May 2008
— Commission of the European Communities v Kingdom
of Belgium

(Case C-392/07) (1)

Appeal brought on 7 March 2008 by Portela & Companhia
the judgment delivered by the Court of
SA against
First Instance (Fifth Chamber) on 11 December 2007 in
Case T-10/06, Portela & Companhia SA v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM)

(Failure of a Member State to fulfil obligations — Directive
2005/19/EC — Common system of taxation applicable to
mergers, divisions, transfers of assets and exchanges of shares
concerning companies of different Member States — Failure
to transpose within the period prescribed)

(Case C-108/08 P)

(2008/C 158/12)

Language of the case: Portuguese

(2008/C 158/11)

Language of the case: Dutch

Parties

Parties

Appellant: Portela & Companhia (represented by J. Conceição
Pimenta, advogado)

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal, acting as Agent)

Other parties to the proceedings: Office for Harmonisation in the
Juan Torrens
Internal Market
Cuadrado and Josep Gilbert Sanz

(Trade Marks and Designs),

Defendant: Kingdom of Belgium (represented by: D. Haven,
Agent)

By order of 22 April 2008 the President of the Court of Justice
ordered the removal of the case from the Court's register.

Re:

Failure of a Member State to fulfil obligations — Failure to
adopt, within the period prescribed, the provisions necessary to
comply with Council Directive 2005/19/EC of 17 February
2005 amending Directive 90/434/EEC on the common system
of taxation applicable to mergers, divisions, transfers of assets
and exchanges of shares concerning companies of different
Member States (OJ 2005 L 58, p. 19)

Operative part of the judgment

The Court:

Action brought on 11 March 2008 — Commission of the
European Communities v Republic of Austria

(Case C-110/08)

(2008/C 158/13)

Language of the case: German

1. Declares that, by failing to adopt, within the period prescribed, the
laws, regulations and administrative provisions necessary to comply
with Council Directive 2005/19/EC of 17 February 2005
amending Directive 90/434/EEC on the common system of taxa-
transfers of assets and
tion applicable
exchanges of shares concerning companies of different Member
States, the Kingdom of Belgium has failed to fulfil its obligations
under that directive;

to mergers, divisions,

Parties

Applicant: Commission of the European Communities (repre-
sented by: T. Scharf and D. Recchia, Agents)

Defendant: Republic of Austria

21.6.2008

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Official Journal of the European Union

C 158/9

Form of order sought

The applicant asks the Court to:

— declare that, by still not having submitted to the Commis-
sion a complete list of proposed sites of Community impor-
tance or because the present list transmitted to the Commis-
sion is still
incomplete with regard to six natural habitat
types in the Alpine biogeographical region (3230, 6520,
*7220, 8130, 9110 and 9180), and ten natural habitat
types (*1530, 3240, *6110, *6230, 6520, 8150, 8220,
(Vertigo
9150, 91F0 and *91I0)
moulinsiana, *Osmoderma eremita, Rutilus pigus, Triturus cris-
tatus, Triturus
carnifex, Rhinolophus hipposideros, Barbastella
barastellus, Myotis emarginatus, Myotis myotis, Mannia triandra,
Buxbaumia viridis, Drepanocladus vernicosus) in the Continental
biogeographical region, the defendant has failed to fulfil its
obligations under Article 4(1) of Council Directive
92/43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

and twelve

species

— order the Republic of Austria to bear the costs.

Pleas in law and main arguments

In order to set up a coherent European ecological network of
special areas of conservation according to a specified timetable,
Article 4(1) of Directive 92/43/EEC requires the Member States
to draw up, on the basis of the criteria set out in Annex III to
the Directive and relevant scientific information, a list of sites
hosting natural habitat types in Annex I and species in Annex II
that are native to its territory. This national list is to include the
sites which host the priority natural habitat types and species
selected by the Member States on the basis of the criteria set out
in Annex III.
‘Priority’ species and natural habitats are those
which are in danger of disappearance and for the conservation
of which the Community has particular responsibility in view of
the proportion of their natural range which falls within the
European territory of the Member States. This list was to be
transmitted to the Commission within three years of the notifi-
cation of the Directive, together with information on each site.
The Directive entered into force for the Republic of Austria, as
amended by the Treaty of Accession, upon its accession to the
European Union on 1 January 1995, and the time-limit for
transposition has in any case by now unquestionably expired.

As the Republic of Austria has still not submitted to the
Commission a complete list of proposed sites of Community
importance, it has infringed its obligations under Article 4(1) of
Directive 92/43/EEC.

According to the Commission, the Republic of Austria relies on
alleged procedural defects which make the Commission's action
unlawful.

phical regions. The defendant argues that as the drawing up of
reserves lists is not provided for under
the
Commission is not entitled to rely on them in order to accuse
the defendant of an incomplete notification of areas of conser-
vation.

the Directive,

That argument cannot however be accepted. It is not at all rele-
vant whether the directive regulates the drawing up of reserves
lists or not; what matters is solely whether the national lists of
suggested sites proposed to the Commission are complete. From
the viewpoint of the Commission, the reserves lists represent
merely stocktaking of the gaps in the process of drawing up a
complete Natura 2000 network. While the Directive may not
provide for such lists,
it does not preclude them from being
drawn up.

By virtue of the notification of additional subsequent nomina-
that it cannot defend itself,
tions, the defendant's argument
because it is not able to understand the scientific evidence relied
upon by the Commission, lacks substance: the defendant was
obviously in a position to see for itself that further nominations
were
indisputably
involved in the biogeographical procedures.

the defendant was

required. Moreover,

The long period of time between the first reasoned opinion and
the first and second supplementary reasoned opinions did not
deny the defendant any procedural rights and cannot therefore
be held against the Commission. The Commission refrained
from bringing an action against
immediately
already in 1998 only because it had reason to believe that the
defendant would soon comply with its obligation under the
Directive. On a total of three occasions the defendant was given
a time-limit within which to transmit the complete notification
to the Commission.
therefore enjoyed an unusually long
period of time within which it could both have commented on
the Commission's allegations and dealt with the subject-matter
of the action.

the defendant

It

The argument that the Commission's demands for subsequent
nominations were made pursuant to the procedure laid down in
Article 4 of the Directive and therefore ‘could not at the same
time be regarded as a continuation of the infringement proce-
dure’ does not appear valid. Precisely because the demands for
subsequent nominations took place according to Article 4 of
the Directive, although the nomination phase should have long
since been concluded, those demands for subsequent nomina-
tions provided clear indications of the fact that the defendant
had still not complied with its obligation under Article 4. By
virtue of the fact that the Commission accepted subsequent
nominations over many years without bringing an action, the
defendant obtained further opportunities to make the procedure
devoid of purpose by fulfilling its obligations.

The defendant's first objection relates to the so-called ‘reserves
lists’, that is the lists of natural habitat types and species in
respect of which the Commission has determined the network
to be incomplete in its decisions on the lists of the sites of Com-
munity importance for the Alpine and Continental biogeogra-

It must be stated in conclusion that, contrary to the defendant's
argument, the consultation procedure provided for in Article 5
of the Directive is not applicable. That procedure is envisaged
only in exceptional cases in which a dispute between the

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Official Journal of the European Union

21.6.2008

Commission and a Member State on scientific grounds is to be
resolved, but not in cases which,
like the present case, are
concerned only with incomplete notification of sites generally.

The procedural objections put forward by the defendant are
therefore not well founded.

According to the appellant the CFI should have assessed the
distinctive character of the mark on the overall perception of
the wording ‘SAFETY 1st’ by the average consumer. The splitting
by the Court of the trademark ‘SAFETY 1st’ into its component
parts does not reflect the view and approach adopted by consu-
mers.

Appeal brought on 1 April 2008 by Dorel Juvenile Group,
Inc. against the judgment of the Court of First Instance
(Fifth Chamber) delivered on 24 January 2008 in Case
for
T-88/06, Dorel
Harmonization in the Internal Market (Trade Mark and
Designs) (OHIM)

Juvenile Group,

Inc. v Office

The contested judgment relies on a criterion according to which
the expression safety first is used to designate the goods covered
by the mark applied for ‘as information relating to a quality or
characteristic of
the goods’. The appellant submits that that
criterion is relevant in the context of Article 7(1)(c) of Regu-
lation No 40/94 but
the yardstick against which
Article 7(1)(b) thereof should be judged. Therefore, the Court
based its view that the sign in question fell within the scope of
Article 7(1)(b) on the fat that it did not satisfy the criteria for
protection governed by Article 7(1)(c).

is not

it

(Case C-131/08 P)

(2008/C 158/14)

Language of the case: English

Finally the appellant submits that the CFI also ignored the fact
that Article 12(b) of Regulation No 40/94 (1) constitutes a
corrective to the interpretation of Article 7(1)(b).

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

Community trade mark (OJ L 11).

Parties

Appellant: Dorel
Simon, Rechtsanwältin)

Juvenile Group,

Inc.

(represented by: Dr. G.

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

Form of order sought

Reference for a preliminary ruling from the Hoge Raad der
lodged on 2 April 2008 — Intercontainer
Nederlanden,
Interfrigo (ICF) SC v Balkenende Oosthuizen BV and MIC
Operations BV

(Case C-133/08)

(2008/C 158/15)

The appellant claims that the Court should:

Language of the case: Dutch

— annul

judgment of

the Court of First

Instance (Fifth

Chamber) of 24 January 2008, Case T-88/06;

— annul

the Decision of

the Second Board of Appeal of

11 January 2006, Case R 616/2004-2 and

Referring court

— order the defendant to pay the costs.

Hoge Raad der Nederlanden

Pleas in law and main arguments

The appellant submits that the CFI's assessment of the condi-
tions for registration of a trademark is too restrictive. The appel-
lant argues that the CFI assessed the character of
the term
‘SAFETY 1st’ by means of a separate analysis of the element ‘1st’
and based its judgment on the presumption that as the element
‘1st’ was devoid of a distinctive character it cannot acquire such
character when combined with the trademark element ‘SAFETY’.

Parties to the main proceedings

Appellant: Intercontainer Interfrigo (ICF) SC

Respondents: Balkenende Oosthuizen BV and MIC Operations BV