Source: EURLEX
Language: en
Format: md

C 7/4 EN Official Journal of the European Communities 11.1.2003

1. _Articles 43 EC and 48 EC preclude a national provision such_
_as that at issue in the main proceedings, which excludes the_
_transferor at undervalue of shares in companies from the benefit_
_of deferral of tax due on capital gains made on those shares_
_where the transfer is to a foreign legal person in which the_
_transferor directly or indirectly has a holding — provided that_
_that holding gives him definite influence over the decisions of_
_that foreign legal person and allows him to determine its_
_activities — or to a Swedish limited company which is a branch_
_of such a foreign legal person._

2. _Articles 56 EC and 58 EC preclude a national provision such_
_as that at issue in the main proceedings, which excludes the_
_transferor at undervalue of shares in companies from the benefit_
_of deferral of tax due on capital gains made on those shares_
_where the transfer is to a foreign legal person in which the_
_transferor directly or indirectly has a holding which is not such_
_as to give him definite influence over the decisions of that_
_foreign legal person or allow him to determine its activities._

( [1] ) OJ C 45 of 10.2.2001.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 21 November 2002**

**in Case C-473/00 (Reference for a preliminary ruling from**
**the tribunal d’instance de Vienne): Cofidis SA v Jean-**
**Louis Fredout** ( [1] )

_**(Directive 93/13/EEC — Unfair terms in consumer contracts**_
_**— Action brought by a seller or supplier — National**_
_**provision prohibiting the national court from finding a term**_
_**unfair, of its own motion or following a plea raised by the**_
_**consumer, after the expiry of a limitation period)**_

(2003/C 7/06)

_(Language of the case: French)_

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

In Case C-473/00: Reference to the Court under Article 234
EC by the Tribunal d’instance de Vienne (France) for a

preliminary ruling in the proceedings pending before that
court between Cofidis SA and Jean-Louis Fredout, on the
interpretation of Council Directive 93/13/EEC of 5 April 1993
on unfair terms in consumer contracts (OJ 1993 L 95,
p. 29), the Court (Fifth Chamber), composed of: M. Wathelet,
President of the Chamber, C.W.A. Timmermans,
D.A.O. Edward, A. La Pergola and P. Jann (Rapporteur),
Judges; A. Tizzano, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on
21 November 2002, in which it has ruled:

_Council Directive 93/13/EEC of 5 April 1993 on unfair terms in_
_consumer contracts precludes a national provision which, in proceed-_
_ings brought by a seller or supplier against a consumer on the basis_
_of a contract concluded between them, prohibits the national court,_
_on expiry of a limitation period, from finding, of its own motion or_
_following a plea raised by the consumer, that a term of the contract_
_is unfair._

( [1] ) OJ C 61 of 24.2.2001.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 21 November 2002**

**in Case C-23/01 (Reference for a preliminary ruling from**
**the Hof van Beroep te Brussel): Robelco NV v Robeco**
**Groep NV** ( [1] )

_**(Directive 89/104/EEC — Article 5(5) — Provisions on**_
_**protection against use of a sign other than for the purposes**_
_**of distinguishing goods or services — Extent of such**_
_**protection — Signs similar to the mark)**_

(2003/C 7/07)

_(Language of the case: Dutch)_

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

In Case C-23/01: Reference to the Court under Article 234 EC
by the Hof van Beroep te Brussel (Belgium) for a preliminary
ruling in the proceedings pending before that court between

11.1.2003 EN Official Journal of the European Communities C 7/5

Robelco NV and Robeco Groep NV on the interpretation
of Article 5(5) 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
(Sixth Chamber), composed of: R. Schintgen, President of the
Second Chamber, acting for the President of the Sixth Chamber, V. Skouris, F. Macken (Rapporteur), N. Colneric and
J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, has given a judgment on 21 November 2002, in
which it has ruled:

_Article 5(5) of First Council Directive 89/104/EEC of 21 December_
_1988 to approximate the laws of the Member States relating to_
_trade marks must be interpreted as meaning that a Member State_
_may, if it sees fit, and subject to such conditions as it may determine,_
_protect a trade mark against use of a sign other than for the purposes_
_of distinguishing goods or services, where use of that sign without_
_due cause takes unfair advantage of, or is detrimental to, the_
_distinctive character or the repute of the trade mark._

( [1] ) OJ C 79 of 10.3.2001.

**JUDGMENT OF THE COURT**

**of 26 November 2002**

**in Case C-100/01 (Reference for a preliminary ruling from**
**the Conseil d’État): Ministre de l’Intérieur v Aitor Oteiza**
**Olazabal** ( [1] )

_**(Freedom of movement for persons — Restrictions — Public**_
_**policy (ordre public) — Police measures limiting the right of**_
_**residence of a national of another Member State to part of**_
_**the national territory)**_

(2003/C 7/08)

_(Language of the case: French)_

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

In Case C-100/01: Reference to the Court under Article 234
EC by the Conseil d’État (France) for a preliminary ruling in
the proceedings pending before that court between Ministre
de l’Intérieur and Aitor Oteiza Olazabal, on the interpretation
of Articles 6, 8a and 48 of the EC Treaty (now, after
amendment, Articles 12 EC, 18 EC and 39 EC) and of Council
Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds

of public policy, public security or public health (OJ, English
Special Edition 1963-1964, p. 117), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
Judges; A. Tizzano, Advocate General; M.-F. Contet, Administrator, for the Registrar, has given a judgment on 26 November
2002, in which it has ruled:

_Neither Article 48 of the EC Treaty (now, after amendment,_
_Article 39 EC) nor the provisions of secondary legislation which_
_implement the freedom of movement for workers preclude a Member_
_State from imposing, in relation to a migrant worker who is a_
_national of another Member State, administrative police measures_
_limiting that worker’s right of residence to a part of the national_
_territory, provided_

—
_that such action is justified by reasons of public order or public_
_security based on his individual conduct;_

—
_that, by reason of their seriousness, those reasons could_
_otherwise give rise only to a measure prohibiting him from_
_residing in, or banishing him from, the whole of the national_
_territory; and_

— _that the conduct which the Member State concerned wishes to_
_prevent gives rise, in the case of its own nationals, to punitive_
_measures or other genuine and effective measures designed to_
_combat it._

( [1] ) OJ C 108 of 7.4.2001.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 26 November 2002**

**in Case C-202/01: Commission of the European Communi-**
**ties v French Republic** ( [1] )

_**(Failure by a Member State to fulfil its obligations —**_
_**Directive 79/409/EEC — Conservation of wild birds —**_
_**Classification as special protection areas — Plaine des**_
_**Maures)**_

(2003/C 7/09)

_(Language of the case: French)_

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

In Case C-202/01, Commission of the European Communities
(Agents: G. Valero Jordana and J. Adda) v French Republic