Case C-221/08: Action brought on 22 May 2008 — Commission of the European Communities v Ireland
Date: 2008-05-22
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, fixing of prices, reference price, tobacco industry

15.8.2008

EN

Official Journal of the European Union

C 209/23

In this respect, the appellant states, first, that the Court of First
Instance erred in law in interpreting Article 6 ter of the Paris
Convention literally and out of context, without taking account
of the spirit of that provision and of the Convention in general,
which, since its review carried out by the Lisbon Act of
31 October 1958, requires extending all the provisions relating
to trade marks to service marks, with the exception of certain
provisions which are not applicable in the present case.

The appellant claims, second, that the Community legislature
itself contests that it is necessary to draw a distinction between
trade marks for goods and trade marks for services since
Article 29 of the Community Trade Mark Regulation, which
transposes Article 4 A of the Paris Convention, relating to rights
of priority, mentions explicitly the services covered by a trade
mark application.

The appellant observes third that, contrary to what the Court of
First Instance held in the judgment under appeal, Article 16 of
the Trademark Law Treaty, adopted at Geneva on 27 October
1994, must be interpreted as meaning that it clarifies the field
the Paris Convention, without however
of application of
extending its field of application to situations that that conven-
tion excludes in its current wording.

Justice itself admitted, at

Lastly, the appellant states that, in a recent judgment, the Court
of
the Paris
Convention requires equal treatment as between trade marks for
goods and trade marks for services.

implicitly,

least

that

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

Community trade mark (OJ 1994 L 11, p. 1).

(2) United Nations Treaty Series, Vol. 828, No 11847, p. 108.

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 22 May 2008 — E. Friz
GmbH v Carsten von der Heyden

(Case C-215/08)

(2008/C 209/33)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: E. Friz GmbH

Questions referred

1. Must the first sentence of Article 1(1) of Council Directive
85/577/EEC of 20 December 1985 to protect the consumer
in respect of contracts negotiated away from business
premises (1) be interpreted as meaning that it applies to a
consumer's entry into a partnership, commercial partnership,
association or cooperative if the principal purpose of joining
is not to become a member of the partnership, association
or cooperative but — as frequently applies in particular in
relation to participation in a closed-end real estate fund —
participation as a member is simply another means of capital
investment or of obtaining services which are typically the
object of reciprocal contracts?

2. Must Article 5(2) of Council Directive 85/577/EEC of
20 December 1985 to protect the consumer in respect of
contracts negotiated away from business premises be inter-
preted as meaning that
it precludes a legal effect under
national (judge-made) law within the meaning of Article 7 of
the directive which states that, where a consumer becomes a
member in a doorstep-selling situation, the consequence is
that,
in the event that the membership is cancelled, the
consumer cancelling the membership has a claim against the
partnership, association or cooperative, calculated at the time
that the cancellation takes effect, to his severance balance,
that is, a sum corresponding to the value of his interest in
the partnership, association or cooperative at the time of
retirement from membership, with the (possible) effect that,
as a result of the economic development of the partnership,
association or cooperative, he either gets back less than the
value of his capital contribution or even finds himself
exposed to payment obligations which, because the severance
balance is negative, go beyond the loss of the capital contri-
bution paid?

(1) OJ L 372, 31.12.1985, p. 31.

Action brought on 22 May 2008 — Commission of the
European Communities v Ireland

(Case C-221/08)

(2008/C 209/34)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal, W. Mölls, Agents)

Defendant: Carsten von der Heyden

Defendant: Ireland

C 209/24

EN

Official Journal of the European Union

15.8.2008

The applicant claims that the Court should:

Defendant: Kingdom of Belgium

— declare that by imposing minimum and maximum retail
prices for cigarettes, Ireland has failed to comply with its
obligations under Article 9(1) of Council Directive
95/59/EC (1) of 27 November 1995 on taxes other than
turnover taxes which affect the consumption of manufac-
tured tobacco;

— declare that by failing to provide the necessary information
on the applicable Irish legislation in order to enable the
Commission to fulfil its duty to monitor compliance with
Directive 95/59, Ireland has failed to comply with its obliga-
tions under Article 10 EC;

Form of order sought

— Declare that, by virtue of the transposition into national law
of the provisions on the costing and financing of universal
service obligations, the Kingdom of Belgium has failed to
fulfil
its obligations under Articles 12(1), 13(1), and
Annex IV, part A, of Directive 2002/22/EC;

— order Kingdom of Belgium to pay the costs.

— order Ireland to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

By virtue of
the Tobacco Products (Control of Advertising,
Sponsorship and Sales Promotion) (No 2) Regulations 1986 and
the arrangements made in implementation of those regulations
with tobacco manufacturers and importers, Ireland imposes a
minimum price for cigarettes corresponding to a level no more
than 3 % below the weighted average price for cigarettes in the
category in question. Moreover, in so far as manufacturers and
importers may not set prices more than 3 % above that
weighted average price, Ireland also imposes a maximum price
for cigarettes. Such a system is contrary to Article 9(1) of direc-
tive 95/59, under which tobacco manufacturers are ‘free to
determine the maximum retail selling price for each of their
products’.

Pursuant to Article 10 EC, the Member States have a duty to
in particular by complying
facilitate the Commission's tasks,
with requests for information made in the course of infringe-
ment proceedings. The Commission submits that by failing to
provide any information on the applicable Irish legislation,
despite the Commission's repeated requests, Ireland has failed to
comply with its obligations under Article 10 EC.

(1) OJ L 291, p. 40.

The objective of Directive 2002/22 is, inter alia, to define the
situations in which the market does not satisfactorily meet the
needs of end-users and the directive contains provisions
regarding the availability of the universal service. Article 12(1)
of the directive provides that where national regulatory authori-
ties consider that the provision of universal service may repre-
sent an unfair burden on undertakings designated to provide
universal service, they are to calculate the net costs of its provi-
sion in the manner set out in that article. Annex IV, part A,
contains provisions concerning the calculation of the net costs.
Article 13(1) provides that where, on the basis of the net cost
calculation referred to in Article 12, national regulatory authori-
ties find that an undertaking is subject to an unfair burden, the
Member States are, upon request from a designated undertaking,
to decide to introduce a compensation mechanism.

According to the Commission, Belgium has not correctly trans-
posed the provisions of Article 12(1), Article 13(1) and
the directive. The Belgian legislation
Annex IV, part A, of
provides for no assessment of the question whether the provi-
sion of social tariffs in the course of performing the universal
service represents an unfair burden for
the undertakings
concerned. Furthermore the Belgian legislation does not satisfy
the requirement concerning the costing of net costs set out
more particularly in the last section of Annex IV, part A, to the
directive.

Action brought on 21 May 2008 — Commission of the
European Communities v Kingdom of Belgium

Reference for a preliminary ruling from the Verwaltungs-
gericht Oldenburg (Germany) lodged on 26 May 2008 —
Stadt Papenburg v Bundesrepublik Deutschland

(Case C-222/08)

(2008/C 209/35)

Language of the case: Dutch

(Case C-226/08)

(2008/C 209/36)

Language of the case: German

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: H. van Vliet and A. Nijenhuis, acting as Agents)

Verwaltungsgericht Oldenburg