Case C-560/08: Action brought on 17 December 2008 — Commission of the European Communities v Kingdom of Spain
Date: 2008-12-17
Institutions: Court of Justice
Subjects: Spain, action for failure to fulfil an obligation, environmental protection, road network, town and country planning

7.3.2009

EN

Official Journal of the European Union

C 55/11

Questions referred

1 (a) Where a trader in certain goods or services (‘the adver-
tiser’) avails himself of the possibility of submitting to
the provider of an internet search engine an adword
[when advertising via the internet, it is possible to pay to
use ‘adwords’ on search engines such as Google. When
such an adword is keyed into the search engine, a refer-
ence to the advertiser's website appears either in the list
of webpages found, or as an advertisement on the right-
hand side of the page showing the results of the search,
under the heading ‘Sponsored links’] which is identical to
trade mark registered by another person (‘the
a
proprietor’) in respect of similar goods or services, and
the adword submitted — without this being visible to
the search engine user — results in the internet user who
enters that word finding a reference to the advertiser's
website in the search engine provider's list of search
results, is the advertiser ‘using’ the registered trade mark
within the meaning of Article 5(1)(a) of Directive
89/104/EEC (1)?

(b) Does it make a difference in that regard whether the

reference is displayed

— in the ordinary list of webpages found; or

— in an advertising section identified as such?

(c) Does it make a difference in that regard

— whether, even within the reference notification on
the search engine provider's webpage, the advertiser
is actually offering goods or services that are identical
to the goods or services covered by the registered
trade mark; or

— whether the advertiser is in fact offering goods or
services which are identical to the goods or services
covered by the registered trade mark on a webpage of
his own, which internet users (as referred to in Ques-
tion 1(a)) can access via a hyperlink in the reference
on the search engine provider's webpage?

2. If and in so far as the answer to Question 1 is in the
affirmative, can Article 6 of Directive 89/104, in particular
Article 6(1)(b) and (c),
in the proprietor being
result
precluded from prohibiting the use described in Question 1
and, if so, under what circumstances?

3. In so far as the answer to Question 1 is in the affirmative, is
Article 7 of Directive 89/104 applicable where an offer by
the advertiser, as indicated in Question 1, relates to goods
which have been marketed in the European Community
under the proprietor's trade mark referred to in Question 1
or with his permission?

4. Do the answers to the foregoing questions apply also in the
case of adwords, as referred to in Question 1, submitted by
the advertiser, in which the trade mark is deliberately repro-
duced with minor spelling mistakes, making searches by the
internet-using public more effective, assuming that the trade
mark is reproduced correctly on the advertiser's website?

5. If and in so far as the answers to the foregoing questions
mean that the trade mark is not being used within the

meaning of Article 5(1) of Directive 89/104, are the Member
States entitled,
in relation to the use of adwords such as
those at issue in this case, simply to grant protection —
under Article 5(5) of that directive, in accordance with provi-
sions in force in those States relating to the protection
against the use of a sign other than for the purposes of
distinguishing goods or services — against use of that sign
which, in the opinion of the courts of those Member States,
without due cause takes unfair advantage of, or is detri-
mental to, the distinctive character or the repute of the trade
mark, or do Community-law parameters associated with the
answers to the foregoing questions apply to national courts?

(1) First Council Directive of 21 December 1988 to approximate the
laws of the Member States relating to trade marks (OJ 1989 L 40,
p. 1).

Action brought on 17 December 2008 — Commission of
the European Communities v Kingdom of Spain

(Case C-560/08)

(2009/C 55/18)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán, D. Recchia and J.-B. Laignelot,
acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that the Kingdom of Spain has failed to fulfil its obli-

gations,

— in accordance with Article 2(1), Article 3(1) and (2) as
the case may be, Article 4 and Article 5 of Council
Directive 85/337/EEC (1) of 27 June 1985 on the assess-
ment of the effects of certain public and private projects
on the environment in relation to separate projects for
widening and/or upgrading the M-501 road corre-
sponding to sections 1, 2 and 4;
in accordance with
Article 6(2)
and Article 8 of Council Directive
85/337/EEC in relation to separate projects for widening
and/or upgrading the M-501 road corresponding to
sections 2 and 4; and in accordance with Article 9 of
Directive 85/337/EEC in relation to separate projects for
widening and/or upgrading the M-501 road corre-
sponding to sections 1, 2 and 4;

C 55/12

EN

Official Journal of the European Union

7.3.2009

— in accordance with Article 6(3) and (4) of Council Direc-
tive 92/43/EEC (2) of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora, read in
conjunction with Article 7 thereof, with respect to the
separate projects for widening and/or upgrading the
M-501 road corresponding to sections 1, 2 and 4 of the
special protection area for birds ES 0000056 ‘Encinares
del río Alberche y río Cofio’;

Forms of order sought

— Declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 43 EC and 49 EC by adopting provi-
sions fixing compulsory ceilings for lawyers' fees;

— Order the Italian Republic to pay the costs.

the

and

obligations

— in accordance with Directive 92/43/EEC, interpreted by
the judgments of the Court of Justice of 13 January
2005 in Case C-117/03 and 14 September 2006 in Case
from
C-244/05,
Article 12(1)(b) and (d) of the directive, with respect to
separate projects for widening and/or upgrading the
M-501 road corresponding to section 1 as regards the
site proposed as a site of Community importance
ES 3110005 ‘Cuenca del río Guadarrama’, and sections 2
and 4 regarding the proposed site of Community interest
ES 3110007 ‘Cuenca de los ríos Alberche y Cofio’;

resulting

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The action brought by the Commission relates to the projects
approved or, as the case may be, implemented by the Spanish
authorities with respect to the widening and/or upgrading of the
local M-501 road (Community of Madrid). The Commission
the Kingdom of Spain has failed, with
takes the view that
respect to those projects, to fulfil its obligations under Directive
85/337,
in its original or amended version, and Directive
92/43, as interpreted by the judgments of the Court of Justice
of 13 January 2005 in Case C-117/03 and of 14 September
2006 in Case C-244/05.

(1) OJ 1985 L 175, p. 40.
(2) OJ 1992 L 206, p. 7.

Action brought on 19 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-565/08)

(2009/C 55/19)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and L. Prete, acting as Agents)

Defendant: Italian Republic

Pleas in law and main arguments

freedom of

The capping of the fees that may be charged for the court-based
and out-of-court services of lawyers constitutes a restriction on
establishment within the meaning of
the
Article 43 EC, and also a restriction on the freedom to provide
services within the meaning of Article 49 EC. Indeed, a compul-
sory scale of fee ceilings that must be applied, irrespective of the
quality of the service provided, the work required and the costs
incurred, may make the Italian market in legal services unattrac-
tive for
foreign professionals. Lawyers established in other
Member States are therefore discouraged from establishing
themselves in Italy or providing their services there on a
temporary basis.

First, having to adapt to a new (and very complex) fee regime
entails additional costs that may make it more difficult to exer-
cise the fundamental freedoms recognised by the Treaty.

Secondly, fee ceilings represent a further restriction on the free
movement of legal services in the internal market, since they
prevent the quality of the activities carried out by lawyers estab-
lished in Member States other than Italy from being correctly
remunerated; this means that some lawyers, who normally ask
for higher fees than those established under the Italian legisla-
tion on the basis of
the Italian market, are deterred from
providing their services in Italy on a temporary basis or from
establishing themselves in that State.

Lastly, the rigidity of the Italian fee regime prevents lawyers
(including those established abroad) from making special offers
in specific situations and/or to specific clients: for example, a
package of given legal services for a fixed fee, or a number of
legal services provided in several Member States at a common
rate. The Italian legislation may therefore lead the situation of
lawyers established abroad to be less competitive since it
deprives them of an effective means of penetrating the Italian
legal market.

In addition, the disputed measure appears neither suitable for
attaining the general interest objectives referred to by the Italian
authorities, nor the least restrictive means of achieving those
objectives. In particular, the disputed measure does not appear
to be a suitable means of ensuring that the less affluent have
access to justice, or that the recipients of
legal services are
protected, or for ensuring the proper administration of justice.
Nor does the measure appear proportionate, since there are
other measures which appear to be appreciably less restrictive
for lawyers established abroad, and equally (if not more) suitable
for achieving the protection objectives relied on by the Italian
authorities.