Source: EURLEX
Language: en
Format: md

21.2.2004 EN Official Journal of the European Union C 47/7

Vaamonde): Application for a declaration that, by failing to
adopt the laws, regulations and administrative provisions
necessary to comply with Article 4(c) of Commission Directive
90/388/EEC of 28 June 1990 on competition in the markets
for telecommunications services (OJ 1990 L 192, p. 10) as
amended by Commission Directive 96/19/EC of 13 March
1996 (OJ 1996 L 74, p. 13), the Kingdom of Spain has failed
to fulfil its obligations under those directives and the EC
Treaty, the Court (Fifth Chamber), composed of: P. Jann, acting
for the President of the Fifth Chamber, D.A.O. Edward
(Rapporteur) and A. La Pergola, Judges; P. Léger, Advocate
General; R. Grass, Registrar, has given a judgment on 7 January
2004, in which it:

1. _Declares that, by failing to adopt the laws, regulations and_
_administrative provisions necessary to comply with Article 4(c)_
_of Commission Directive 90/388/EEC of 28 June 1990 on_
_competition in the markets for telecommunications services, as_
_amended by Commission Directive 96/19/EC of 13 March_
_1996, the Kingdom of Spain has failed to fulfil its obligations_
_under that directive;_

2. _Orders the Kingdom of Spain to pay the costs._

( [1] ) OJ C 56 of 2.3.2002.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 7 January 2004**

**in Case C-58/02: Commission of the European Communi-**
**ties v Kingdom of Spain** ( [1] )

_**(Failure of a Member State to fulfil obligations — Directive**_
_**98/84/EC — Information society — Radio broadcasting —**_
_**Services based on conditional access — Services consisting**_
_**of conditional access — Protected services — Legal protection**_
_**— Devices giving unauthorised access)**_

(2004/C 47/11)

_(Language of the case: Spanish)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-58/02, Commission of the European Communities
(Agents: G. Valero Jordana and M. Shotter v Kingdom of Spain
(Agent: S. Ortiz Vaamonde): Application for a declaration that,

by failing to adopt the laws, regulations and administrative
provisions necessary to comply with Directive 98/84/EC of
the European Parliament and of the Council of 20 November
1998 on the legal protection of services based on, or consisting
of, conditional access (OJ 1998 L 320, p. 54), or, at the very
least, by failing to notify the Commission of the adoption of
those measures, the Kingdom of Spain has failed to fulfil its
obligations under that directive, the Court (Fifth Chamber),
composed of: P. Jann, acting for the President of the Fifth
Chamber, D.A.O. Edward (Rapporteur) and S. von Bahr,
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
has given a judgment on 7 January 2004, in which it:

1. _Declares that, by failing to adopt the laws, regulations and_
_administrative provisions necessary to comply with Directive_
_98/84/EC of the European Parliament and of the Council of_
_20 November 1998 on the legal protection of services based_
_on, or consisting of, conditional access, the Kingdom of Spain_
_has failed to fulfil its obligations under that Directive;_

2. _Orders the Kingdom of Spain to pay the costs._

( [1] ) OJ C 109 of 4.5.2002.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 7 January 2004**

**in Case C-60/02 (Reference for a preliminary ruling from**
**the Landesgericht Eisenstadt): X** ( [1] )

_**(Counterfeit and pirated goods — No criminal penalty for**_
_**the transit of counterfeit goods — Compatibility with**_
_**Regulation (EC) No 3295/94)**_

(2004/C 47/12)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-60/02: Reference to the Court under Article 234 EC
by the Landesgericht Eisenstadt (Austria) for a preliminary
ruling in the criminal proceedings before that court against X,
on the interpretation of Council Regulation (EC) No 3295/94
of 22 December 1994 laying down measures concerning the
entry into the Community and the export and re-export
from the Community of goods infringing certain intellectual
property rights (OJ 1994 L 341, p. 8), as amended by Council

C 47/8 EN Official Journal of the European Union 21.2.2004

Regulation (EC) No 241/1999 of 25 January 1999 (OJ
1999 L 27, p. 1), the Court (Fifth Chamber), composed of:
D.A.O. Edward (Rapporteur), acting for the President of the
Fifth Chamber, A. La Pergola and P. Jann, Judges; D. RuizJarabo Colomer, Advocate General; R. Grass, Registrar, has
given a judgment on 7 January 2004, in which it has ruled:

1. _Articles 2 and 11 of Council Regulation (EC) No 3295/94 of_
_22 December 1994 laying down measures concerning the entry_
_into the Community and the export and re-export from the_
_Community of goods infringing certain intellectual property_
_rights, as amended by Council Regulation (EC) No 241/1999_
_of 25 January 1999, are applicable to situations in which_
_goods in transit between two countries not belonging to the_
_European Community are temporarily detained in a Member_
_State by the customs authorities of that State._

2. _The duty to interpret national law so as to be compatible with_
_Community law, in the light of its wording and purpose, in_
_order to attain the aim pursued by the latter, cannot, of itself_
_and independently of a law adopted by a Member State, have_
_the effect of determining or aggravating the liability in criminal_
_law of an entity which has failed to meet the requirements of_
_Regulation No 3295/94._

( [1] ) OJ C 131 of 1.6.2002.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 7 January 2004**

**in Case C-100/02 (Reference for a preliminary ruling from**
**the Bundesgerichtshof): Gerolsteiner Brunnen GmbH &**
**Co. v Putsch GmbH** ( [1] )

_**(Directive 89/104/EEC — Limitation of the effects of a trade**_
_**mark in relation to indications concerning geographical**_
_**origin — Use of a geographical indication as a trade mark**_
_**as an element of use in accordance with ‘honest practices in**_
_**industrial or commercial matters’)**_

(2004/C 47/13)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-100/02: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary
ruling in the proceedings pending before that court between
Gerolsteiner Brunnen GmbH & Co. and Putsch GmbH, on the

interpretation of Article 6(1)(b) of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40,
p. 1), the Court (Fifth Chamber), composed of: P. Jann, acting
for the President of the Fifth Chamber, C.W.A. Timmermans
and D.A.O. Edward (Rapporteur), Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the
Registrar, has given a judgment on 7 January 2004, in which
it has ruled:

_Article 6(1)(b) of First Council Directive 89/104/EEC of 21 Decem-_
_ber 1988 to approximate the laws of the Member States relating to_
_trade marks is to be interpreted as meaning that, where there exists a_
_likelihood of aural confusion between a word mark registered in one_
_Member State and an indication, in the course of trade, of the_
_geographical origin of a product originating in another Member_
_State, the proprietor of the trade mark may, pursuant to Article 5 of_
_Directive 89/104, prevent the use of the indication of geographical_
_origin only if that use is not in accordance with honest practices in_
_industrial or commercial matters. It is for the national court to carry_
_out an overall assessment of all the circumstances of the particular_
_case in that regard._

( [1] ) OJ C 144 of 15.6.2002.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 7 January 2004**

**in Case C-201/02 (Reference for a preliminary ruling from**
**the High Court of Justice (England & Wales), Queen’s**
**Bench Division (Administrative Court): The Queen on**
**the application of Delena Wells v Secretary of State for**
**Transport, Local Government and the Regions** ( [1] )

_**(Directive 85/337/EEC — Assessment of the effects of**_
_**certain projects on the environment — National measure**_
_**granting consent for mining operations without an environ-**_
_**mental impact assessment being carried out — Direct effect**_
_**of directives Triangular situation)**_

(2004/C 47/14)

_(Language of the case: English)_

In Case C-201/02: Reference to the Court under Article 234
EC by the High Court of Justice of England and Wales, Queen’s