Source: EURLEX
Language: en
Format: md

C 219/6 EN Official Journal of the European Communities 14.9.2002

**Reference for a preliminary ruling by the Tribunale** legislation, subjecting undertakings active on the Italian
**Amministrativo Regionale per il Lazio by judgment of** market to conditions more oppressive than those pro**that Court of 23 January 2002 in the cases of Telecom** vided for by those provisions of Community law in the
**Italia Mobile (C-250/02), BLU SpA, intervener: Albacom** other States of the Union?
**(C-251/02), Telecom Italia SpA, intervener: Telemar**
**(C-252/02), Omnitel Pronto Italia SpA (C-253/02), and**
**WIND Telecomunicazioni SpA (C-256/02) against Mini-**
( [1] ) OJ L 117 of 7.5.1997, p. 15.
**stero del Tesoro, del Bilancio e della Programmazione**
**Econimica (now Ministero dell’ Economia e delle Finanze)**
**and Ministero delle Comunicazioni**

**(Cases C-250/02, C-251/02, C-252/02,C-253/02 and C-256/**
**02)**

(2002/C 219/09) **Reference for a preliminary ruling by the High Court of**
**Justice (England & Wales), Chancery Division, by order**
**of that court dated 17 June 2002, in the case of La Mer**
**Technology Inc. against Laboratoires Goemar S.A.**

Reference has been made to the Court of Justice of the
**(Case C-259/02)**
European Communitiesby order of the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court for
Lazio) of 23 January 2002, received at the Court Registry on
(2002/C 219/10)
10 July 2002, for a preliminary ruling in the cases of Telecom
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom
(C-251/02), Telecom Italia SpA, intervener: Telemar (C-252/
02), Omnitel Pronto Italia SpA (C-253/02), and WIND Telecomunicazioni SpA (C-256/02) against Ministero del Tesoro, del
Reference has been made to the Court of Justice of the
Bilancio e della Programmazione Econimica (now Ministero
European Communities by an order of the High Court of
dell’ Economia e delle Finanze) and Ministero delle ComunicaJustice (England & Wales), Chancery Division, dated 17 June
zioni (Ministry of the Treasury, Budget and Economic Planning
2002, which was received at the Court Registry on 15 July
(now Ministry of Economy and Finance) and Ministry of
2002, fora preliminaryruling inthe case of La Mer Technology
Communications) on the following questions:
Inc. and Laboratoires Goemar S.A. on the following questions:

1) Do Articles 6 and 11 of Directive 97/13/EC ( [1] ) of the 1. What factors should be taken into accountwhen deciding
European Parliament and of theCouncil of 10 April 1997
whether a mark has been ‘put to genuine use’in a Member
on a common framework for general authorizations and
State within the meaning of Articles 10(1) and 12(1) of
individual licences in the field of telecommunications
the First Council Directive 89/104( [1] ) of 21 December
services permit Member States to require only those 1988?
undertakings which hold a licence or authorisation to
carry on telecommunications activities to make financial
payments, whatever they may be called, other than and
In particular:
in addition to those provided for by that Directive, and
are such payments in keeping with the principle of nondiscrimination? 2. Should the extent of use of the mark in relation to the
goods or services for which the mark is registered in the
Member State be taken into account?
2) Do Articles 6 and 11 of Directive 97/13/EC permit
Member States to introduce direct or indirect taxes or
3. Is any amount of use however small, sufficient if it was
other charges of a fiscal nature on activities consisting
made with no purpose other than commercially dealing
of installing and supplying public telecommunications
in the goods or providing the service concerned?
networks, the supply to the public of voice telephony
services and mobile and personal communication services, determined in variable percentage terms and having 4. If the answer to the foregoing question is ‘no’ what is the
equivalent effect to those prohibited by the Community test for determining how much use is sufficient, and in
legislation? particular does that test include a consideration of nature
and size of the business of the registered proprietor?

3) May Articles 2, 3 and 95 of the Treaty and Article 12 of
Directive 97/13/EC be interpreted to mean that it is not 5. Is token or sham use to be disregarded, and in particular
permissible for the Member States to introduce financial is use whose sole or predominant purpose is defeating a
charges contrary to the provisions of the harmonising potential claim for revocation to be disregarded?

14.9.2002 EN Official Journal of the European Communities C 219/7

6. What types of use can be considered, and in particular is _Pleas in law and main arguments_
it necessary to show that the mark has been used in the
course of trade in the Member State concerned and in
further particular would importation by a single customer Article 249 EC, which provides that a directive is to be binding
into that Member State be sufficient? as to the result to be achieved upon each Member State,
implies the obligation upon each Member State to observe the
time-limits for implementation laid down in directives. That
7. Is it necessary to disregard use occurring after the filing time-limit expired on 24 October 1998 without the Italian
of the application for revocation even for the purpose of Republic having issued the provisions necessary to comply
testing whether use during the relevant period was with Article 5 of the directive referred to in the Commission’s
genuine? claims.

( [1] ) OJ 1998 L 24, p. 1.

( [1] ) To approximate the laws of the Member States relating to trade
marks (OJ L 40, 11.2.1989, p. 1).

**Action brought on 23 July 2002 by the Commission of**
**the European Communities against the Grand Duchy of**
**Luxembourg**

**(Case C-268/02)**

(2002/C 219/12)
**Action brought on 19 July 2002 by the Commission of**
**the European Communities against the Italian Republic**

An action against the Grand Duchy of Luxembourg was
**(Case C-267/02)** brought before the Court of Justice of the European Communities on 23 July 2002 by the Commission of the European
Communities, represented by D. Martin, acting as Agent.

(2002/C 219/11)
The applicant claims that the Court should:

—
Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
An action against the Italian Republic was brought before the Council Directive 98/24/EC of 7 April 1998 on the
Court of Justice of the European Communities on 19 July protection of the health and safety of workers from the
2002 by the Commission of the European Communities, risks related to chemical agents at work (fourteenth
represented by M. Shotter and C. Loggi, acting as Agents. individual Directive within the meaning of Article 16(1)
of Directive 89/391/EEC)( [1] ), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that
directive; and
The applicant claims that the Court should:

—
Order the Grand Duchy of Luxembourg to pay the costs.

1. Declare that, by not adopting within the prescribed timelimit, or in any event not notifying the laws, regulations
and administrative provisions necessary to comply with _Pleas in law and main arguments_
Article 5 of Directive 97/66/EC( [1] ) of the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the The period prescribed for transposition expired on 5 May
protection of privacy in the telecommunications sector, 2001.
the Italian Republic has failed to fulfil its obligations
under Articles 5 and 15 of that directive;
( [1] ) OJ 1998 L 131, p. 11.

2. Order the Italian Republic to pay the costs.