Case C-395/07: Judgment of the Court (Eighth Chamber) of 5 June 2008 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2004/48/EC — Enforcement of intellectual property rights — Failure to transpose within the prescribed period)
Date: 2008-06-05
Institutions: Court of Justice
Subjects: European Commission, Germany, TRIPS, action for failure to fulfil an obligation, approximation of laws, industrial property, intellectual property, national implementing measure

19.7.2008

EN

Official Journal of the European Union

C 183/5

Re:

Reference for a preliminary ruling — Tribunal d'instance de
Paris (France) — Interpretation of Annex I to Council Regu-
lation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff
(OJ 1987 L 256, p. 1), in the version applicable to the facts in
the main proceedings — Subheadings 8525 40 91 (video
camera recorders: Only able to record sound and images taken
by the television camera) and 8525 40 99 (other) — Classifica-
tion of camcorders which, when imported, are unable to record
external video sound signals (DV out function) but the video
interface of which can subsequently be activated through the
use of software or an enabler (DV in/out), without the manufac-
turer and the seller having mentioned or endorsed that possibi-
lity — Whether it is possible to effect a change in Community
practice with regard to tariff classification by way of subsequent
retroactive amendments
to the explanatory notes on the
Combined Nomenclature rather than by means of the adoption
of a regulation on tariff classification that would be applicable
only in the future

Judgment of the Court (Eighth Chamber) of 5 June 2008 —
the European Communities v Federal
Commission of
Republic of Germany

(Case C-395/07) (1)

(Failure of a Member State to fulfil obligations — Directive
2004/48/EC — Enforcement of intellectual property rights —
Failure to transpose within the prescribed period)

(2008/C 183/08)

Language of the case: German

Parties

Operative part of the judgment

Applicant: Commission of the European Communities (repre-
sented by: W. Wils and H. Krämer, acting as Agents)

and

2000

Regulation

Commission

1. A camcorder may be classified under subheading 8525 40 99 of
the Combined Nomenclature in Annex 1 to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff as amended by
Commission Regulation (EC) No 2261/98 of 26 October 1998,
Commission Regulation (EC) No 2204/1999 of 12 October
(EC) No 2388/2000 of
1999, Commission Regulation
(EC)
13 October
the function for
No 2031/2001 of 6 August 2001 only if
recording images and sounds from sources other than the integrated
camera or microphone is active at the time of customs clearance or
if, even though the manufacturer did not intend to promote that
characteristic, that function may be activated subsequently by simple
modification of the apparatus by a user who does not have special
skills, without modification of the camcorder's hardware. Where the
camcorder is activated subsequently, it is also necessary, first, that,
once activated, it functions in a manner similar to that of another
camcorder whose function for recording images and sounds from
sources other than the integrated camera or microphone is active at
the time of customs clearance and, second, that it functions inde-
pendently. The existence of those conditions must be capable of
being ascertained at the time of customs clearance. It is for the
national court to establish whether those conditions are fulfilled. If
those conditions are not fulfilled the camcorder must be classified
under subheading 8525 40 91 of the Combined Nomenclature.

Defendant: Federal Republic of Germany (represented by: M.
Lumma, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to
adopt, within the prescribed period, all the provisions necessary
to comply with Directive 2004/48/EC of
the European
Parliament and of the Council of 29 April 2004 on the enforce-
ment of intellectual property rights (OJ 2004 L 157, p. 45, and
— Corrigendum — OJ 2004 L 195, p. 16)

Operative part of the judgment

The Court:

2. The explanatory notes to that Combined Nomenclature relating to
subheading 8525 40 99, published on 6 July 2001 and
23 October 2002, are interpretative in character and do not have
legally binding force. They are in accordance with the wording of
the Combined Nomenclature and do not alter its scope. It follows
that the adoption of a new classification regulation was not neces-
sary.

1. Declares that, by failing to adopt, within the period prescribed, all
the provisions necessary to comply with Directive 2004/48/EC of
the European Parliament and of the Council of 29 April 2004 on
the enforcement of intellectual property rights, the Federal Republic
of Germany has failed to fulfil its obligations under that directive;

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 211, 8.9.2007.

(1) OJ C 247, 20.10.2007.