Source: EURLEX
Language: en
Format: md

C 227/10 EN Official Journal of the European Communities 11.8.2001

6. Prior to the entry into force of Regulation (EC) **Reference for a preliminary ruling by the Tribunal**
No 2700/2000( [2] ) of the European Parliament and of **Superior de Justicia, Castilla-La-Mancha, Sala de lo Conten-**
the Council of 16 November 2000, which amended **cioso-Administrativo del Tribunal, Seccio´n Segunda, by**
Article 221(3) of the Community Customs Code, was **order of 3 April 2001 in the case of Isabel Parras Medina**
there any provision of Community law which provided **and Adelina Paras Medina v Conséjeria de Agricultura de**
for the suspension of the period of three years for post- **la Junta, de Comunidades de Castilla-La-Mancha**
clearance recovery as soon as an appeal is lodged?

**(Case C-208/01)**

( [1] ) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
post-clearance recovery of import duties or export duties which (2001/C 227/16)
have not been required of the person liable for payment on goods
entered for a customs procedure involving the obligation to pay Reference has been made to the Court of Justice of the
such duties (OJ 1979 L 197, p. 1). European Communities by order of 3 April 2001 by the
( [2] ) Regulation (EC) No 2700/2000 of the European Parliament
Tribunal Superior de Justicia, Castilla-La-Mancha, Sala de lo
and of the Council of 16 November 2000 amending Council
Contencioso-Administrativo del Tribunal, Seccio´n Segunda
Regulation (EEC) No 2913/92 establishing the Community Cus(Second section of the Administrative-law Chamber of the
toms Code (OJ 2000 L 311, p. 17).
High Court of Justice, Castilla-La-Mancha) which was received
at the Court Registry on 18 May 2001, for a preliminary ruling
in the case of Isabel Parras Medina and Adelina Paras Medina v
Conséjeria de Agricultura de la Junta de Comunidades de
Castilla-La-Mancha on the following questions:

1. Must the scope of the concept of _force majeure_ used in
Article 12 of Regulation No 1294/96 of 4 July 1996 be
**Reference for a preliminary ruling by the Verwaltungsge-** altered so as to equate to that of unforeseen and
**richtshof by order of that court of 25 April 2001 in the** compelling circumstances, as described in this decision,
**case of Dr Tilmann Klett against the Federal Minister for** of such a kind that negligence as regards compliance with
**Education, Science and Culture** the time-limit in question would not be regarded as such?

2. Are the consequences provided for in the abovemen**(Case C-204/01)** tioned Article 12 in the nature of a sanction or a penalty
and, if that is the a case, does that fact contribute to the
need to alter the scope of the said concept of _force majeure_ ?
(2001/C 227/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichtshof of 25 April 2001, received at the Court Registry on
16 May 2001, for a preliminary ruling in the case of
Dr Tilmann Klett against the Federal Minister for Education,
Science and Culture on the following question: **Reference for a preliminary ruling by the Bundespa-**
**tentgericht by order of that court of 10 April 2001 in the**
**case of Henkel KGaA**
Are Article 19b of Council Directive 78/686/EEC( [1] ) of 25 July
1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of **(Case C-218/01)**
practitioners of dentistry, including measures to facilitate the
effective exercise of the right of establishment and freedom to (2001/C 227/17)
provide services, as amended by the Act of Accession, Official
Journal C 241 of 29 August 1994; p. 218, Article 12 EC and Reference has been made to the Court of Justice of the
Article 39 EC, and Article 1; read in conjunction with Article 3 European Communities by order of the Bundespatentgericht
and Article 9, of Council Directive 93/16/EEC( [2] ) to facilitate (Federal Patents Court) of 10 April 2001 which was received
the free movement of doctors and the mutual recognition of at the Court Registry on 29 May 2001, for a preliminary ruling
their diplomas, certificates and other evidence of formal in the case of Henkel KGaA on the following questions on the
qualifications, to be interpreted as precluding legislation under interpretation of Article 3(1)(b), (c) and (e) of First Council
which admission to a training course in dentistry covered by Directive 89/104/EEC( [1] ) of 21 December 1988 to approximate
Article 19b of Directive 78/686/EEC requires a degree in the laws of the Member States relating to trade marks (OJ
medicine obtained at an Austrian university? 1989 L 40, p. 1):

1. In the case of three-dimensional trade marks which
( [1] ) OJ 1978 L 233, p. 1. consist of the packaging of goods which are normally
( [2] ) OJ 1993 L 165, p. 1. traded in packaged form (such as liquids, for example) is
the packaging of the goods to be equated with the shape
of the goods for the purpose of trade mark law in such a
way that

11.8.2001 EN Official Journal of the European Communities C 227/11

—
(a) the packaging of the goods is to be regarded as the Order the Kingdom of Belgium to pay the costs.
shape of the goods for the purpose of Article 3(1)(e)
of the directive; and

(b) the packaging of the goods may serve to designate
the (external) quality of the packaged goods for the _Pleas in law and main arguments_
purpose of Article 3(1)(c) of the directive?

2. In the case of three-dimensional trade marks which —
Failure correctly to transpose Article 7(5) of Directive
consist of the packaging of goods which are normally
97/33/EC: under the last two sentences of the second
traded in packaged form does the establishment of
subparagraph of Article 7(5) of Directive 97/33, comdistinctive character within the meaning of Article 3(1)(b)
pliance with the cost accounting system must be verified.
of the directive turn on whether or not the average
The Directive states that a statement concerning comconsumer, who is reasonably well-informed and reasonpliance must, in addition, be published annually. Those
ably observant and circumspect, is able to recognise the
obligations are not included in the Belgian legislation.
characteristic features of the three-dimensional trade
mark applied for, which differ from the norm or custom

—
in the sector and are therefore decisive as regards its Failure correctly to transpose Article 9(3) of Directive
capability of serving as an indication of origin, even 97/33/EC: the provisions communicated by the Belgian
without conducting an analytical or comparative examin- authorities as implementing measures, namely the fifth
ation or without paying particular attention? subparagraph of Article 109B(4) of the Law of 21 March
1991 and Articles 8 and 12 of a decree of 20 April 1999,
3. Can the necessary assessment of distinctive character be only partially cover the obligations imposed by the
made solely on the basis of the relevant national trade Directive, since Article 109B(4) concerns solely the
perceptions without further official investigations being obligation imposed by the Belgian legislature on organisnecessary to establish whether and to what extent ident- ations with ‘significant [market] power’ to publish a
ical or comparable trade marks have been registered or reference offer which may be used as a basis for
refused registration in other Member States of the Euro- subsequent negotiations; it is that reference offer which
pean Union? may be changed by the Institute, a possibility which
clearly cannot be construed as a right of intervention in
favour of that institute in any negotiation or discussion
( [1] ) OJ L 40 of 11.2.1989, p. 1.
concerning an interconnection agreement. Nor do the
provisions of the Decree of 20 April 1999 provide for
the regulatory authorities to be able to intervene in the
negotiations ‘on their own initiative at any time’.

—
Failure correctly to transpose Article 14(1) and (2): in
respect of the information relating to the reference
**Action brought on 5 June 2001 by the Commission of the** interconnection offer, which is identified in Article 7(3)
**European Communities against the Kingdom of Belgium** of the Directive, and the main elements of the national
numbering plans referred to in Article 12(4) of the
Directive, the Belgian authorities have opted for a means
**(Case C-221/01)**
of communication in accordance with Article 14(2)
of the Directive, whereas Article 7(3) is covered by
(2001/C 227/18) Article 14(1) which requires easy access to the information and therefore access which is more direct than
An action against the Kingdom of Belgium was brought before that by individual request. In respect of the information
the Court of Justice of the European Communities on 5 June referred to in Article 9(2) of the Directive (general
2001 by the Commission of the European Communities, conditions of interconnection) and the information
represented by H. van Lier, acting as Agent, with an address referred to in Article 10 of the Directive, the Belgian
for service in Luxembourg. legislation does not provide for any publication or
communication in any form whatever. Finally, in respect
The Commission of the European Communities claims that of the information referred to in Article 9(3) of the
the Court should: Directive, the Belgian legislation still does not provide for
access at the request of interested parties.

—
Declare, pursuant to Article 226 EC, that by failing to
adopt all the laws, regulations or administrative provisions necessary to comply with Directive 97/33/EC of
the European Parliament and of the Council of 30 June
1997 on interconnection in Telecommunications with ( [1] ) OJ L 199 of 26.07.1997, p. 32.
regard to ensuring universal service and interoperability
through application of the principles of Open Network
Provision (ONP)( [1] ), in particular with Articles 7(5), 9(3)
and 14(1) and (2) thereof, Belgium has failed to fulfil its
obligations under that directive; and