Source: EURLEX
Language: en
Format: md

1.11.2003 EN Official Journal of the European Union C 264/17

**Reference for a preliminary ruling by the Tribunale**
**Amministrativo Regionale del Lazio — Sezione Seconda**
**ter — by order of that Court of 9 June 2003 in the case of**
**Regione Autonoma Friuli Venezia Giulia and Agenzia**
**Regionale per lo Sviluppo Rurale (ERSA) against Minis-**
**tero per le Politiche Agricole e Forestali and Regione**
**Veneto**

**(Case C-347/03)**

(2003/C 264/27)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministrativo Regionale del Lazio — Sezione Seconda ter (Regional
Administrative Court for Lazio — Second Division / III) of
9 June 2003, received at the Court Registry on 7 August 2003,
for a preliminary ruling in the case of Regione Autonoma
Friuli Venezia Giulia and Agenzia Regionale per lo Sviluppo
Rurale (ERSA) against Ministero per le Politiche Agricole e
Forestali and Regione Veneto on the following questions:

1. Can the Europe Agreement establishing an association
between the European Communities and their Member
States, of the one part, and the Republic of Hungary, of
the other part, concluded on 16 December 1991 and
published in OJ 1993 L 347, provide a proper and
sufficient legal basis for conferring on the European
Community power to conclude the Community Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control
of wine names of 29 November 1993 ( [1] ) (OJ 1993
L 337), with particular reference to Article 65(1), to joint
declaration no 13 and to Annex XIII (points 3, 4 and 5)
of the European Agreement of 1991 on the possible
reservation of the sovereignty and jurisdiction of the
Member States in the matter of national geographical
names used with reference to food and wine and restraint
of any transfer of jurisdiction of competence in that
matter to the European Community.

2. In view of what is said in opinion no 1/94 of the Court
of Justice of the European Communities concerning
the exclusive jurisdiction of the European Community,
should the Community Agreement between the European
Community and the Republic of Hungary on the protection and control of wine names of 29 November 1993
(OJ 1993 L 337), which specifies the protection of
geographical names which have intellectual and commercial property significance, be declared invalid and of no
effect within the Community legal order because the
agreement itself has not been ratified by the individual
Member States of the European Community?

3. In the event that the Community Agreement of 1993 (OJ
1993 L 337) is to be regarded as lawful and applicable in

its entirety, should the prohibition of the use in Italy after
2007 of the name ‘Tocai’, which arises from the exchange
of letters between the parties to the agreement, annexed
to the agreement, be regarded as invalid and of no
effect because it is inconsistent with the rules governing
geographical homonyms established in the agreement
itself (see Article 4(5) of the protocol to the agreement)?

4. Should the Second Joint Declaration annexed to the 1993
agreement (OJ 1993 L 337), which implies that the
contracting parties were unaware, at the time of their
negotiations, of the existence of homonyms connected
with European and Hungarian wines, be regarded as a
clear misrepresentation of reality (given that the Italian
and Hungarian names used to refer to ‘Tocai’ wines have
existed alongside each other for centuries, were officially
recognised in 1948 in an agreement between Italy and
Hungary and were recently brought within the scope of
Community law) such as to render null and void that part
of the 1993 agreement which prohibits the use in Italy of
the name Tocai, on the basis of Article 48 of the Vienna
convention on the law of the Treaties?

5. In light of Article 59 of the Vienna convention on the
law of the Treaties, is the TRIPS agreement on traderelated aspects of intellectual property rights (OJ 1994
L 336), which was concluded within the context of the
World Trade Organisation and entered into force on
1 January 1996, thus after the Community Agreement of
1993 (OJ 1994 L 337) entered into force, to be interpreted as meaning that its provisions governing homonyms
in vine names apply in place of those of the Community
Agreement of 1993 where there is inconsistency between
the two, given that the parties to both agreements are the
same?

6. In the case of two names that are homonyms and refer to
two different wines produced in two different countries
both party to the TRIPS Agreement (and both where the
homonym relates to two geographical names used in
both the countries party to TRIPS and where it relates to
a geographical name in one country and the like name
relates to a vinetraditionally cultivated in another country
party to TRIPS), must Articles 22 to 24 of the Third Part
of Annex C to the Treaty Establishing the World Trade
Organisation, which contains the TRIPS Agreement (OJ
1994 L 336), which entered into force on 1 January
1996, be interpreted as meaning that both the names
may continue to be used provided that they have been
used in the past by the respective producers either in
good faith or for at least 10 years prior to 15 April 1994
(Article 24(4)) and each name clearly indicates the
country or region or area of the origin of the wine to
which it refers in such a way as not to mislead consumers?

C 264/18 EN Official Journal of the European Union 1.11.2003

7. Does the right of ownership set out in Article 1 of
Protocol No 1 to the European Convention on Human
Rights (The Rome Convention of 1950) and taken up in
Article 17 of the Charter of Fundamental Rights of the
European Union proclaimed in Nice in October 2000
also cover intellectual property in the names of the places
of origin of wines and the exploitation of those names,
and, consequently, does the principle expressed by that
law preclude application of the agreement set out in the
exchange of letters annexed to the Agreement between
the European Community and the Republic of Hungary
on reciprocal protection and control of wine names (OJ
1994 L 337), but not included in the body of that
agreement, under which wine-producers of the FriuliVenezia Giulia region are not permitted to use the name
‘Tocai Friulano’, particularly in view of the total lack of
any compensation to the wine-producers of Friuli-Venezia Giulia thus dispossessed, the lack of any general public
interest justifying their dispossession and the evident
disregard for the principle of proportionality?

8. In the event that it is held that the Community laws
contained in the Community Agreement between the
European Community and the Republic of Hungary on
the protection and control of wine names of 29 November 1993 (OJ 1993 L 337) and/or the exchange of letters
annexed thereto are unlawful to the extent described in
the preceding questions, must the provisions of Regulation (EC) No 753/2002 ( [2] ), under which use of the
name ‘Tocai Friulano’ is to be prohibited after 31 March
2007 (Article 19(2)) be regarded as invalid and of no
effect?

( [1] ) Read: 23 November 1993.
( [2] ) OJ L 118 of 4.5.2002, p. 1.

**Reference for a preliminary ruling by the Landgericht**
**Bochum by order of that Court of 29 July 2003 in the**
**proceedings between 1. MrsElisabeth Schulte, 2. MrWolf-**
**gang Schulte and Deutsche Bausparkasse Badenia AG**

**(Case C-350/03)**

(2003/C 264/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Bochum
(Bochum Regional Court) of 29 July 2003, received at the
Court Registry on 11 August 2003, for a preliminary ruling in
the proceedings between 1. Mrs Elisabeth Schulte, 2. Mr Wolfgang Schulte and Deutsche Bausparkasse Badenia AG on the
following questions:

1. Does Article 3(2)(a) of Council Directive 85/577/EEC ( [1] )
of 20 December 1985 to protect the consumer in respect
of contracts negotiated away from business premises also
cover such contracts for the purchase of immovable
property which must be regarded as merely a component
of a credit-financed capital investment model and in the
case of which the contract negotiations conducted up to

the conclusion of the contract were held in a doorstepselling situation, as defined in Paragraph 1 of the Gesetz
über den Widerruf von Haustürgeschäften und ähnlichen
Geschäften (Law on the cancellation of doorstep transactions and analogous transactions), both as regards the
contract for the purchase of the immovable property
and the loan agreement serving solely to finance that
purchase?

2. Are the requirements of the rule concerning a high
level of protection in the field of consumer protection
(Article 95(3) EC) and the effectiveness of consumer
protection safeguarded by Directive 85/577/EEC satisfied
by a national legal system or the interpretation thereof
which limits merely to the reversal of the loan agreement
the legal effects of the revocation of the declaration of
intent to enter into a loan agreement, even in connection
with such capital investment models in which the loan
would not have been granted atall without the acquisition
of the immovable property?

3. Is a national rule on the legal effects of cancelling a loan
agreement to the effect that the cancelling consumer
must pay back the loan proceeds to the financing bank,
even though according to the plan drawn up for the
capital investment the loan serves solely to finance the
immovable property and is paid directly to the vendor of
the immovable property, consistent with the protective
purpose of the rule on cancellation laid down in
Article 5(2) of Directive 85/577/EEC?

4. Where a legal effect of cancellation, under national law,
results in the consumer being required, after declaring
cancellation, immediately to pay back — in accordance
with the plan drawn up for the capital investment — the
loan proceeds which have thus far not been redeemed at
all, plus interest thereon at the normal market rate, is this
effect contrary to the rule concerning a high level of
protection in the field of consumer protection
(Article 95(3) EC) and to the principle of the effectiveness
of consumer protection enshrined in Directive 85/577/
EEC?

( [1] ) OJ L 372, p. 31.

**Reference for a preliminary ruling by the Bundesgerichts-**
**hof by order of that Court of 9 July 2003 in the case of**
**Dr Elisabeth Mayer against Versorgungsanstalt des Bundes**
**und der Länder**

**(Case C-356/03)**

(2003/C 264/29)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) of 9 July 2003, received at the Court
Registry on 18 August 2003, for a preliminary ruling in the
case of Dr Elisabeth Mayer against Versorgungsanstalt des
Bundes und der Länder on the following questions: