Source: EURLEX
Language: en
Format: md

C 146/16 EN Official Journal of the European Union 21.6.2003

2. Order the Federal Republic of Germany to pay the costs.

_Pleas in law and main arguments_

—
Provisions designed to transpose Article 6(3) of the
directive are to be evaluated in terms of whether they
require an assessment of the implications in the case of
all projects likely to have a significant effect on special
areas of conservation. Whether a particular effect may be
significant cannot be decided solely by reference to
the project, but only by taking into consideration the
conservation aims of each individual area of conservation
which may be affected and the nature and extent of the
habitats and species present in each individual area.
However, the definition of ‘projects’ contained in Paragraph 10(1)(11)(b) and (c) of the Bundesnaturschutzgesetz (Federal Law on Nature Conservation) does not take
into account areas of conservation. Even if theoretical
evidence is produced to show that, despite the restrictions
contained in the definition, all conceivable projects likely
to have a significant effect on special areas of conservation
are in fact covered, there would still be no guarantee that
projects with atypical effects of, in principle, a less
apparent nature would be covered if they were likely to
be significant in an actual individual case. In particular,
small habitats containing unusual speciesmay react much
more sensitively to influences than may be anticipated
by provisions concerning projects, which standardise
categories.

—
It is contrary to Article 6(3) and (4) of the directive for
regard not to be had to pollution by noxious substances
outside a (not clearly defined) area where the effects of a
project are felt, which is the position under Paragraph 36
of the Bundesnaturschutzgesetz.

—
Restricting the protection of sites where animals nest,
breed, live or find refuge to cases where there are
deliberate effects (Paragraph 43(4) of the Bundesnaturschutzgesetz) is not consistent with Article 12(1)(d) of
the directive, the clear wording of which indicates that
intention isnot necessary in thecontext of theprohibition
concerning deterioration or destruction of breeding sites
or resting places.

—
Paragraph 43(4) of the Bundesnaturschutzgesetz also
provides for derogations from the provisions concerning
the protection of species in favour of intervention or
measures already authorised, without taking into account
the fact that at the time of authorisation it may not yet
have been known that a protected species is affected.

( [1] ) OJ L 206, 22.7.1992, p. 7.

**Reference for a preliminary ruling by the Tribunale di**
**Firenze by order of that Court of 3 February 2003 in the**
**criminal proceedings against Maria Pupino**

**(Case C-105/03)**

(2003/C 146/27)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Firenze
(District Court, Florence) — Office of the Magistrate in charge
of preliminary enquiries — of 3 February 2003, received at
the Court Registry on 5 March 2003, for a preliminary ruling
in the criminal proceedings against Maria Pupino on the
following question:

Are Articles 2, 3 and 8 of Council Framework Decision 220
of 15 March 2001 on the standing of victims in criminal
proceedings to be interpreted as precluding national legislation
such as that in Articles 392(1a) and 398(5a) of the Italian
Code of Criminal Procedure, which do not provide that, in
respect of offences other than sexual offences or those with a
sexual background, the testimony of witnesses who are minors
under 16 may be heard at the stage of the preliminary
enquiries, in a Special Inquiry (‘incidente probatorio’) and
under special arrangements, for example for the recording of
testimony using audiovisual and sound recording equipment.

**Appeal brought on 27 February 2003 by fax, confirmed**
**by original lodged on 7 March 2003, by Védial SA against**
**the judgment delivered on 12 December 2002 by the**
**Fourth Chamber of the Court of First Instance of the**
**European Communities in Case T-110/01 between Védial**
**SA and the Office for Harmonisation in the Internal**
**Market (Trade Marks and Designs) (OHIM), the other**
**party being France Distribution**

**(Case C-106/03 P)**

(2003/C 146/28)

An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-110/01 between Védial
SA and the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM), the other party being
France Distribution, was brought before the Court of Justice of
the European Communities on 27 February 2003 by fax,
confirmed by original lodged on 7 March 2003, by Védial SA.

21.6.2003 EN Official Journal of the European Union C 146/17

The appellant claims that the Court should:

—
set aside the judgment of the Court of First Instance of
12 December 2002 in Case T-110/01 and accordingly

—
acting pursuant to Article 54 of the Statute of the
Court of Justice, give final judgment in the matter,
granting the forms of order sought by the applicant
before the Court of First Instance;

— in the alternative: refer the case back to the Court of
First Instance for judgment;

—
in any case: order OHIM to pay the costs.

_Pleas in law and main arguments_

—
Plea alleging breach of the ‘principle of party disposition’

The ‘principle of party disposition’ is a general principle
of law under which the parties exercise, in principle, sole
control over legal proceedings. It is they who delimit the
subject-matter of the dispute. The Court of First Instance
certainly acted in breach of the ‘principle of party
disposition’ by holding, contrary to the agreement of the
parties on this point, that there was no similarity between
the conflicting trade marks.

—
Plea alleging breach of the right to a fair hearing

The Court of First Instance also acted in breach of the
right to a fair hearing since it undermined the applicant’s
legitimate expectation as to the delimitation of the
dispute.

—
Plea alleging infringements of the concept of ‘likelihood
of confusion’ and the concept of ‘public’ within the
meaning of Article 8(1)(b) of Regulation No 40/94 ( [1] )

The contested judgment rules out the likelihood of
confusion on the ground that the public ‘will not
attribute the same commercial origin to the goods in
question’. However, a likelihood of confusion also exists
where the public may believe that the goods come from
undertakings which are connected only economically. Moreover, the Court of First Instance rejected any
likelihood of confusion on the ground that ‘even though
there is identity and similarity between the goods covered
by the conflicting marks, the visual, aural and conceptual
differences between the signs’ mean that there is no
likelihood of confusion, whereas the question is not
whether there are differences between the conflicting
marks, but whether there is identity or similarity between
them and whether, considered as a whole with the
identity or similarity of the goods, the degrees of those
similarities are such that there isa likelihood of confusion.

In addition, the Court of First Instance did not apply the
interdependence rule clearly. The Court of First Instance
did not raise the point that the claimed low degree of
similarity between the marks was not offset by the high
degree of similarity between the goods and the strongly
distinctive character of the applicant’s trade mark.

Finally, the Court of First Instance infringed the concept
of ‘likelihood of confusion’ by limiting the public concerned to the ‘targeted public’, the latter comprising only
consumers likely to acquire the marked goods, whereas
the public concerned consists of all persons likely to be
confronted with the mark, which is very different.

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ L 11, 14.1.1994, p. 1).

**Appeal brought on 27 February 2003 by fax, confirmed**
**by the original lodged on 7 March 2003, by The Procter**
**& Gamble Company against the judgment delivered on**
**12 December 2002 by the Fourth Chamber of the Court**
**of First Instance of the European Communities in Case**
**T-63/01 between The Procter & Gamble Company and**
**the Office for Harmonisation in the Internal Market**
**(Trade Marks and Designs) (OHIM)**

**(Case C-107/03 P)**

(2003/C 146/29)

An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-63/01 between The
Procter & Gamble Company and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) (OHIM)
was brought before the Court of Justice of the European
Communities on 27 February 2003 by fax, confirmed by the
original lodged on 7 March 2003, by The Procter & Gamble
Company.

The appellant claims that the Court should:

—
set aside the judgment of the Court of First Instance of
12 December 2002 in Case T-63/01 and, in consequence
thereof,

—
primarily: apply Article 54 of the Statute of the
Court of Justice and give final judgment in the
matter, upholding the form of order sought by the
appellant before the Court of First Instance;