Case C-540/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v Österreich -Zeitungsverlag GmbH
Date: 2008-12-04
Institutions: Court of Justice
Subjects: competition law, consumer protection, domestic market, interpretation of the law, marketing, press

C 69/18

EN

Official Journal of the European Union

21.3.2009

— In the alternative, in the event that the case is not referred
back to the Court of First Instance, uphold the forms of
order sought by the applicant at first instance;

— In any event, order the Commission to pay the costs.

Pleas in law and main arguments

legal assumptions,

Incorrect
incorrect reasons for judgment,
incorrect application of the legal rule in question, failure to
make inquiries (fifth paragraph of Article 230 EC, Article 249 EC
and Article 254 EC, also in relation to Article 6 of the European
Convention for the Protection of Human Rights and Funda-
mental Freedoms).

2. If

the first question is answered in the affirmative,

is a
national regulatory authority competent, in the light of Com-
munity law, to monitor compliance with the prohibition laid
down in Article 57(1)(1) of the Ustawa — Prawo Telekomu-
nikacyjne (Polish Law on Telecommunications) of 16 July
2004 (Dziennik Ustaw No 171, item 1800, as amended)?

(1) OJ L 108, 24.4.2002, pp. 7-20.
(2) OJ L 108, 24.4.2002, pp. 21-32.
(3) OJ L 108, 24.4.2002, pp. 33-50.
(4) OJ L 108, 24.4.2002, pp. 51-77.

Reference for a preliminary ruling from the Naczelny Sąd
on
Administracyjny
28 November 2008 — Telekomunikacja Polska S.A.,
the Urząd Komunikacji
Warsaw,

(Republic

President

Poland)

lodged

of

of

v

Elektronicznej

(Case C-522/08)

(2009/C 69/32)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Telekomunikacja Polska S.A., Warsaw

Reference for a preliminary ruling from the Oberster
lodged on 4 December 2008 —
Gerichtshof
Zeitschriftenverlag
Mediaprint

Zeitungs-

(Austria)

und

GmbH & Co KG v ‘Österreich’-Zeitungsverlag GmbH

(Case C-540/08)

(2009/C 69/33)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Mediaprint Zeitungs- und Zeitschriftenverlag GmbH
& Co KG

Defendant: President of the Urząd Komunikacji Elektronicznej

Defendant:‘Österreich’-Zeitungsverlag GmbH

Questions referred

Questions referred

1. Does Community law permit the Member States to introduce
a prohibition, directed at all undertakings providing telecom-
munication services, on making the conclusion of a service-
provision contract contingent on the purchase of another
service (combined sale) and, in particular, does a measure of
this kind go beyond what is necessary to attain the objectives
of
the directives contained in the telecommunications
package (Directive 2002/19/EC of the European Parliament
and of the Council of 7 March 2002 on access to, and inter-
connection of, electronic communications networks and
associated facilities (1); Directive 2002/20/EC of the European
Parliament and of the Council of 7 March 2002 on the
authorisation of electronic communications networks and
services (2); Directive 2002/21/EC of the European Parlia-
ment and of the Council of 7 March 2002 on a common
regulatory
communications
networks and services (3); and Directive 2002/22/EC of the
European Parliament and of the Council of 7 March 2002
on universal service and users' rights relating to electronic
communications networks and services (4))?

framework

electronic

for

1. Do Articles 3(1) and 5(5) of Directive 2005/29/EC of the
European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial prac-
tices in the internal market and amending Council Directive
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
of the European Parliament and of the Council and Regu-
lation (EC) No 2006/2004 of the European Parliament and
of the Council (Unfair Commercial Practices Directive) (1) or
other provisions of that Directive preclude a national provi-
sion which makes it
to announce, offer or give
bonuses, free of charge, with periodicals and newspapers,
and to announce bonuses, free of charge, with other goods
or services, apart
from exhaustively specified exceptions,
without it being necessary in any particular case to consider
whether such a commercial practice is misleading, aggressive
or otherwise unfair, even where that provision serves not
only to protect consumers, but also serves other purposes
which are not covered by the material scope of the Directive,
for example,
the maintenance of media diversity or the
protection of weaker competitors?

illegal

21.3.2009

EN

Official Journal of the European Union

C 69/19

2. If the first question is answered in the affirmative:

2. If the first question is to be answered in the negative:

Is the chance of taking part in a prize competition, which is
acquired with the purchase of a newspaper, an unfair
commercial practice within the meaning of Article 5(2) of
the Unfair Commercial Practices Directive merely because
that chance is, for at least some of those to whom the offer
the decisive reason for
is addressed, not
purchasing the newspaper?

the only, but

Must Article 15(4) of Directive 92/12/EEC be interpreted as
meaning that proof that the consignee has taken delivery of
the goods may also be provided otherwise than by means of
the accompanying document referred to in Article 18 of
Directive 92/12/EEC?

(1) OJ 1992 L 76, p. 1.

(1) OJ L 149, p. 22.

Reference for a preliminary ruling from the Finanzgericht
München (Germany)
lodged on 11 December 2008 —
British American Tobacco (Germany) GmbH v Hauptzol-
lamt Schweinfurt

Appeal brought on 16 December 2008 by Powerserv
Personalservice GmbH,
formerly Manpower Personal-
service GmbH, against the judgment of the Court of First
Instance (Fifth Chamber) delivered on 15 October 2008 in
Case T-405/05 Powerserv Personalservice GmbH v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-550/08)

(2009/C 69/34)

Language of the case: German

(Case C-553/08 P)

(2009/C 69/35)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: British American Tobacco (Germany) GmbH

Defendant: Hauptzollamt Schweinfurt

Parties

Appellant: Powerserv Personalservice GmbH, formerly Manpower
Personalservice GmbH (represented by: B. Kuchar, Rechtsan-
wältin)

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

Questions referred

Form of order sought

and monitoring of

1. Must the first indent of the first subparagraph of Article 5(2)
of Council Directive 92/12/EEC of 25 February 1992 on the
general arrangements for products subject to excise duty and
such
on the holding, movement
products (1) be interpreted as meaning that non-Community
goods subject to excise duty which have been placed under
an inward processing procedure within the
terms of
Article 84(1)(a) of Regulation (EEC) No 2913/92 (Customs
Code) are to be deemed to be subject to duty-suspension
arrangements even if they are produced, under an inward
processing procedure, from goods which are not subject to
excise duty only after the importation of those goods and
therefore, in accordance with the 15th recital in the preamble
to Directive 92/12/EEC, when they are being moved there is
no need for the accompanying document referred to in
Article 18(1) of Directive 92/12/EEC to be used?

— Set aside the judgment under appeal of the Court of First
Instance of 15 October 2008 in Case T-405/05 and declare
Community trade mark No 76059 invalid in respect of all
goods and services;

— set aside the judgment under appeal of the Court of First
Instance of 15 October 2008 in Case T-405/05 inasmuch as
it relates to the failure to prove the acquired distinctive char-
acter of Community trade mark No 76059, and refer the
case back to the Court of First Instance;

— in any event, order OHIM and the proprietor of the Com-
munity trade mark to bear their own costs and to pay the
appellant's costs as regards the proceedings before the Board
of Appeal of OHIM, the Court of First Instance and the
Court of Justice.