Case C-94/08: Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Posts of ship's captain and chief mate — Nationality clause)
Date: 2008-11-20
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, crew, job access, ship's flag

10.1.2009

EN

Official Journal of the European Union

C 6/9

Judgment of the Court (Sixth Chamber) of 20 November
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-94/08) (1)

Appeal brought on 22 September 2008 by Lancôme
parfums et beauté & Cie SNC against the judgment of the
Court of First Instance (Second Chamber) delivered on
8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS
Hasche Sigle

(Failure of a Member State to fulfil its obligations — Posts of
ship's captain and chief mate — Nationality clause)

(2009/C 6/15)

Language of the case: Spain

Parties

(Case C-408/08 P)

(2009/C 6/16)

Language of the case: French

Parties

Appellant: Lancôme parfums et beauté & Cie SNC (represented
by: A. von Mühlendahl, Rechtsanwalt)

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and L. Lozano Palacios, acting as Agents)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), CMS Hasche Sigle

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz,
Agent)

Re:

Failure of Member State to fulfil its obligations — Infringement
of Article 39 EC — Requirement of Spanish nationality for
persons occupying the posts of captain and chief mate on
certain ships flying the Spanish flag — Incompatibility with
Community law.

Operative part of the judgment

The Court:

1. Declares that in requiring in its legislation Spanish nationality for
persons occupying the posts of ship's captain and chief mate of all
merchant ships flying the Spanish flag other than merchant ships
with a gross tonnage less than 100 GT, which carry cargo or fewer
than 100 passengers and operate exclusively between ports or
points situated in areas in which the Kingdom of Spain has sover-
eignty, sovereign rights or jurisdiction, the Kingdom of Spain has
failed to fulfil its obligations under Community law and, in particu-
lar, under Article 39 EC;

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

(1) OJ C 107, 26.4.2008.

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of 8 July

2008 in Case T-160/07;

— dismiss, as unfounded, the appeal against the decision of the
Office's Cancellation Division of 21 December 2006 in Case
892 C concerning the registration of the Community trade
mark 2965804 COLOR EDITION, on grounds of the appli-
cant having no right to bring an action or, alternatively, on
account of there being no grounds for absolute refusal;

— order the Office to pay the costs incurred in the proceedings
before the Court of First Instance and before the Court of
Justice;

— order CMS Hasche Sigle to pay the costs incurred in the

proceedings before the Office's Board of Appeal.

Pleas in law and main arguments

The appellant advances two grounds of appeal in support of its
appeal.

By its first ground, which has two branches, it submits that the
Court of First Instance erred in law in its interpretation of
Article 55(1)(a) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark (1).

The error consists in the confirmation of the capacity to bring
proceedings granted to the law firm CMS Hasche Sigle in the
proceedings brought before the Office for Harmonisation in the
Internal Market (Trade Marks and Designs), then before the