Case C-384/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 27 August 2008 — Attanasio Group Srl v Comune di Carbognano
Date: 2008-08-27
Institutions: Court of Justice
Subjects: EU law, Italy, action for annulment (EU), competition, motor fuel

22.11.2008

EN

Official Journal of the European Union

C 301/17

The argument raised by the Italian Government that the above-
mentioned Community measures do not ensure traceability is
irrelevant, according to the Commission, because the Com-
munity measures in question are intended precisely to prevent
the entry into the Community of meat from third countries in
which outbreaks of bird flu have been discovered. Thus, those
measures take effect at a stage before that of marketing, when
the Italian measure takes effect, precisely because their objective
is to prevent meat from third countries in which there has been
an outbreak of bird flu from being imported into the Com-
munity. Moreover, the Community has also adopted measures
which ensure the isolation of any outbreaks of bird flu which
may be confirmed within Community territory so as to prevent
any risk of contamination. Within the European Community a
series of veterinary measures were then adopted in order to
prevent the spread of the virus from wild birds to poultry in the
regions in which infected wild birds have been identified and to
stem any epidemics in poultry.

then

Italian Government

The
(EC)
No 1760/2000 (4) which set up a system of traceability for beef
which introduces an obligation to indicate origin on labelling,
to demonstrate the legitimacy of the obligation introduced by
the order in question.

Regulation

cites

The Commission, however, submits that that measure, unlike
the order in question,
is a Community measure and not a
national, and therefore unilateral, measure likely to constitute an
the system
obstacle to trade. Moreover,
introduced by Regulation No 1760/2000 is not solely based on
a system of merely indicating the origin of the product, like the
Italian order on poultrymeat, but on the combination of a series
of elements including a system of identification and registration
of animals.

the effectiveness of

As regards the argument of the Italian Government attempting
to justify the measure on the basis of the precautionary prin-
ciple, in that the Commission has not established that there is
not scientific uncertainty regarding the ways in which the virus
is transmitted to man, the Commission observes, in accordance
with the case-law of the Community courts, that the scientific
data relied on by the Italian Government in the reply to the
reasoned opinion do not establish that there is genuine scientific
uncertainty regarding the ways in which the virus is transmitted
to man. According to the case-law of the Community courts, it
is for the Italian authorities to prove the scientific uncertainty
which justifies the adoption of national measure in pursuance of
the precautionary principle and not for the Commission to
prove the absence of scientific uncertainty as the Italian Govern-
ment appears to suggest in its reply to the reasoned opinion.

domestic animals in general and cats in particular, the Italian
Government has demonstrated the existence of genuine scien-
tific uncertainty regarding the guidance in the documents of the
WHO and the Food Authority cited by it in the reply to the
reasoned opinion, the Commission none the less considers that
application of the precautionary principle adopted to justify the
order in question appears excessive and therefore not propor-
tionate to the objective of the protection of animal health, given
that a series of Community measures have been adopted which
are intended to achieve the same objective.

Finally, until 30 June 2008, Article 5(3)(e) and Article 5(4) of
Regulation 1906/90 on certain marketing standards for poultry
and,
from 1 July 2008, Article 5(4)(e) and Article 5(5) of
Commission Regulation (EC) No 543/2008 impose an obliga-
tion to indicate the origin of poultrymeat only on poultry from
third countries. On that point the Italian Government does not
put forward any counterarguments.

(1) OJ 2000 L 109, p. 29.
(2) OJ 1990 L 173, p. 1.
(3) OJ 2008 L 157, p. 46.
(4) Regulation (EC) No 1760/2000 of the European Parliament and of
the Council of 17 July 2000 establishing a system for the identifica-
tion and registration of bovine animals and regarding the labelling of
beef and beef products and repealing Council Regulation (EC)
No 820/97.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
27 August 2008 — Attanasio Group Srl v Comune di
Carbognano

(Case C-384/08)

(2008/C 301/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Attanasio Group Srl

Even if it is accepted that, as regards the specific case of the
the virus from infected poultry to
possible transmission of

Defendant: Comune di Carbognano

C 301/18

EN

Official Journal of the European Union

22.11.2008

Question referred

Pleas in law and main arguments

Are the Italian regional and national provisions laying down
mandatory minimum distances between roadside petrol stations
and, in particular, Article 13 of the Regional Law of Latium,
which applies to the case before this Court and is material for
the decision in those proceedings, as well as the national frame-
work legislation (Legislative Decree No 32/1998, as subse-
quently amended and supplemented, Law No 57/2001 and
Ministerial Decree of 31 October 2001), in so far as they allow,
or in any event have not prevented provision being made, in the
exercise of
for
minimum distances between petrol stations under Article 13,
compatible with Community law, in particular Articles 43, 48,
49 and 56 of the EC Treaty and the principles of freedom of
competition and non-discrimination enshrined in that treaty, as
stated in the grounds?

the regulatory powers of

the Italian State,

Appeal brought on 16 September 2008 (by fax on
12 September 2008) by Audi AG against the judgment of
the Court of First Instance (Fourth Chamber) delivered on
9 July 2008 in Case T-70/06 Audi AG v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F.
Schiwek, Rechtsanwälte)

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

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark: The Court
of First Instance — like the Board of Appeal — did not state
sufficient reasons regarding the relevant public in each case. In
view of the large number of goods and services to be covered
by the trade mark applied for, it was not permissible to take a
uniform view across the board.

Further, the Court of First Instance applied too strict a standard
when considering distinctive character. The Court of First
Instance disregarded the fact
that even so-called advertising
slogans are essentially word marks. It applied noticeably stricter
requirements to establish distinctive character solely on the basis
in its view the trade mark applied for,
of
‘Vorsprung durch Technik’, was an advertising slogan.

the fact

that

Breach of Article 63 of Council Regulation No 40/94: The
Court of First Instance confined itself to reviewing the decision
of the Board of Appeal. New facts put forward by the parties,
which were not already covered by the decision of the Board of
Appeal were neither admitted nor taken into account in the
decision. However, when considering distinctive character, the
Court of First Instance referred to a document which was only
submitted by the defendant with the defence. The finding that
the trade mark applied for,
‘Vorsprung durch Technik’, was
devoid of distinctive character was based essentially on the
content of that document and the appraisal of that content by
the Court of First Instance.

Appeal brought on 15 September 2008 (by fax on
12 September 2008) by the Commission of the European
Communities against the judgment delivered by the Court
of First Instance (Third Chamber, Extended Composition)
on 1 July 2008 in Case T-266/02 Deutsche Post AG,
supported by the Federal Republic of Germany v
Commission of the European Communities, supported by
Bundesverband Internationaler Express- und Kurierdienste
eV (BIEK) and UPS Europe NV/SA

(Case C-399/08 P)

(2008/C 301/33)

Language of the case: German

Form of order sought

— Set aside the judgment under appeal;

— Set aside the decision of the Second Board of Appeal of the
Office
Internal Market of
16 December 2005 in Case R 237/2005-2 in so far as it
dismisses in part the appeal against the examiner's decision;

for Harmonisation in the

Parties

— Order the Office for Harmonisation in the Internal Market
to pay the costs of proceedings before the Court of Justice,
before the Court of First Instance and before the Board of
Appeal.

Appellant: Commission of the European Communities (repre-
sented by V. Kreuschitz, J. Flett and B. Martenczuk, acting as
Agents)