Case C-210/06: Judgment of the Court (Grand Chamber) of 16 December 2008 (reference for a preliminary ruling from the Szegedi Ítélőtábla (Republic of Hungary)) — In the proceedings in the case of Cartesio Oktató és Szolgáltató Bt (Transfer of a company seat to a Member State other than the Member State of incorporation — Application for amendment of the entry regarding the company seat in the commercial register — Refusal — Appeal against a decision of a court entrusted with keeping the commercial register — Article 234 EC — Reference for a preliminary ruling — Admissibility — Definition of court or tribunal — Definition of a court or tribunal against whose decisions there is no judicial remedy under national law — Appeal against a decision making a reference for a preliminary ruling — Jurisdiction of appellate courts to order revocation of such a decision — Freedom of establishment — Articles 43 EC and 48 EC)
Date: 2008-12-16
Institutions: Court of Justice
Subjects: EU law - national law, company law, head office, interpretation of the law, jurisdiction, registration of a company, transfer of businesses

21.2.2009

EN

Official Journal of the European Union

C 44/3

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: G.
Schneider, acting as Agent), Orange A/S (represented by:
J. Balling, advokat)

Party to the main proceedings

Cartesio Oktató és Szolgáltató Bt

Re:

the Court of First Instance
Appeal against the judgment of
(Third Chamber) of 27 October 2005 in Case T-336/03 Editions
Albert René v OHIM — Orange (MOBILIX) by which that Court
dismissed an action for annulment brought by the proprietor of
the Community and national word mark ‘OBELIX’ in respect of
certain goods and services classed inter alia in Classes 9, 16, 28,
35, 41 and 42 against Decision R 559/2002-4 of the Fourth
Board of Appeal of OHIM of 14 July 2003 rejecting in part the
application brought against the decision of the Opposition Divi-
sion rejecting the opposition proceeding brought against the
application to register the word mark MOBILIX in respect of
certain goods and services classed in Classes 9, 16, 35, 37, 38
and 42

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Les Éditions Albert René Sàrl to pay the costs.

(1) OJ C 143, 17.6.2006.

Judgment of the Court (Grand Chamber) of 16 December
2008 (reference for a preliminary ruling from the Szegedi
Ítélőtábla (Republic of Hungary)) — In the proceedings in
the case of Cartesio Oktató és Szolgáltató Bt

(Case C-210/06) (1)

keeping

(Transfer of a company seat to a Member State other than the
Member State of incorporation — Application for amendment
of the entry regarding the company seat in the commercial
register — Refusal — Appeal against a decision of a court
entrusted with
register —
the
Article 234 EC — Reference for a preliminary ruling —
Admissibility — Definition of ‘court or tribunal’ — Defini-
tion of ‘a court or tribunal against whose decisions there is no
judicial remedy under national law’ — Appeal against a deci-
sion making a reference for a preliminary ruling — Jurisdic-
tion of appellate courts to order revocation of such a decision
— Freedom of establishment — Articles 43 EC and 48 EC)

commercial

(2009/C 44/04)

Language of the case: Hungarian

Referring court

Szegedi Ítélőtábla

Re:

Reference for a preliminary ruling — Szegedi Ítélőtábla — Inter-
pretation of Articles 43, 48 and 234 EC — No possibility to
transfer the seat of a company constituted under the law of a
Member State to another Member State without first going into
liquidation in the Member State of origin.

Operative part of the judgment

1. A court such as the referring court, hearing an appeal against a
decision of a lower court, responsible for maintaining the commer-
cial register, rejecting an application for amendment of information
entered in that register, must be classified as a court or tribunal
which is entitled to make a reference for a preliminary ruling under
Article 234 EC, regardless of the fact that neither the decision of
the lower court nor the consideration of the appeal by the referring
court takes place in the context of inter partes proceedings.

2. A court such as the referring court, whose decisions in disputes
such as that in the main proceedings may be appealed on points of
law, cannot be classified as a court or tribunal against whose deci-
sions there is no judicial remedy under national
law, within the
meaning of the third paragraph of Article 234 EC.

3. Where rules of national

law apply which relate to the right of
appeal against a decision making a reference for a preliminary
ruling, and under those rules the main proceedings remain pending
before the referring court in their entirety, the order for reference
alone being the subject of a limited appeal, the second paragraph of
Article 234 EC is to be interpreted as meaning that the jurisdiction
conferred on any national court or tribunal by that provision of the
Treaty to make a reference to the Court for a preliminary ruling
cannot be called into question by the application of those rules,
where they permit the appellate court to vary the order for reference,
to set aside the reference and to order the referring court to resume
the domestic law proceedings.

4. As Community law now stands, Articles 43 EC and 48 EC are to
be interpreted as not precluding legislation of a Member State
under which a company incorporated under
that
Member State may not transfer its seat to another Member State
whilst retaining its status as a company governed by the law of the
Member State of incorporation.

the law of

(1) OJ C 165, 15.7.2006.