CELEX: C2003/019/17
Language: en
Date: 2003-01-25 00:00:00
Title: Order of the Court (Fourth Chamber) of 19 September 2002 in Case C-267/01 (reference for a preliminary ruling from the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien AG (Article 104(3) of the Rules of Procedure — Answer to a question admitting of no reasonable doubt — Article 3 of Regulation (EEC) No 3922/91 — Harmonisation of technical requirements and administrative procedures in the field of civil aviation — Paragraph 35 of Code 145 of the Joint Aviation Requirements)

25.1.2003                EN                      Official Journal of the European Communities                                             C 19/9
                  JUDGMENT OF THE COURT                                                          ORDER OF THE COURT
                                                                                                     (Fourth Chamber)
                         (Second Chamber)
                                                                                                  of 19 September 2002
                       of 28 November 2002                                  in Case C-267/01 (reference for a preliminary ruling from
                                                                            the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien
                                                                                                             AG ( 1)
in Case C-414/01: Commission of the European Communi-
                    ties v Kingdom of Spain ( 1)                            (Article 104(3) of the Rules of Procedure — Answer to a
                                                                            question admitting of no reasonable doubt — Article 3 of
                                                                            Regulation (EEC) No 3922/91 — Harmonisation of techni-
(Failure by a Member State to fulfil its obligations — Failure              cal requirements and administrative procedures in the field
                 to implement Directive 97/7/EC)                            of civil aviation — Paragraph 35 of Code 145 of the Joint
                                                                                                  Aviation Requirements)
                            (2003/C 19/16)                                                             (2003/C 19/17)
                                                                                                (Language of the case: German)
                    (Language of the case: Spanish)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            In Case C-267/01: reference to the Court under Article 234
                                                                            EC from the Oberste Gerichtshof (Austria) for a preliminary
                                                                            ruling in the proceedings pending before that court between
                                                                            Jaroslav Nyvlt and Flughafen Wien AG — on the interpretation
In Case C-414/01, Commission of the European Communities                    of Paragraph 35 of Code 145 of the Joint Aviation Require-
(Agent: I. Martínez del Peral) v Kingdom of Spain (Agent:                   ments, applicable to the Community by virtue of Article 3 of
S. Ortiz Vaamonde): Application for a declaration that, by                  Council Regulation (EEC) No 3922/91 of 16 December
failing to adopt the laws, regulations and administrative                   1991 on the harmonisation of technical requirements and
provisions necessary to comply with Directive 97/7/EC of the                administrative procedures in the field of civil aviation (OJ
European Parliament and of the Council of 20 May 1997 on                    1991 L 373, p. 4), as amended by Commission Regulation
the protection of consumers in respect of distance contracts                (EEC) No 2176/96 of 13 November 1996 (OJ 1996 L 291,
(OJ 1997 L 144, p. 19), or, in any event, by failing to inform              p. 15) — the Court (Fourth Chamber), composed of: S. von
the Commission of such provisions, the Kingdom of Spain has                 Bahr, President of the Chamber, D.A.O. Edward and A. La
failed to fulfil its obligations under Article 15(1) of that                Pergola (Rapporteur), Judges; A. Tizzano, Advocate General;
directive, the Court (Second Chamber), composed of:                         R. Grass, Registrar, has made an order on 19 September 2002,
R. Schintgen, President of the Chamber, V. Skouris and                      in which it has ruled:
N. Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate
General; R. Grass, Registrar, has given a judgment on 28 No-                1.    Where a worker authorised to certify aircraft fit for service is
vember 2002, in which it:                                                         placed by his employer at the disposal of an approved
                                                                                  maintenance organisation, the obligations flowing from Para-
                                                                                  graph 35 of Code 145 of the Joint Aviation Requirements,
1.    Declares that by failing to adopt within the prescribed period              applicable in the Community by virtue of Article 3 of Directive
      the laws, regulations and administrative provisions necessary to            1999/42/EC of the European Parliament and of the Council
      comply with Directive 97/7/EC of the European Parliament                    of 7 June 1999 establishing a mechanism for the recognition of
      and of the Council of 20 May 1997 on the protection of                      qualifications in respect of the professional Council Regulation
      consumers in respect of distance contracts the Kingdom of Spain             (EEC) No 3922/91 of 16 December 1991 on the harmon-
      has failed to fulfil its obligations under Article 15(1) of that            ization of technical requirements and administrative procedures
      directive;                                                                  in the field of civil aviation, as amended by Commission
                                                                                  Regulation No 2176/96 of 13 November 1996, apply to
                                                                                  such an approved maintenance organisation.
2.    Orders the Kingdom of Spain to pay the costs.
                                                                            2.    Without prejudice to the fulfilment of the obligations placed
                                                                                  upon an approved maintenance organisation by Paragraph 35
                                                                                  of Code 145 of the abovementioned Joint Aviation Require-
( 1) OJ C 348 of 8.12.2001.
                                                                                  ments, that provision does not preclude that, on the basis of
                                                                                  national provisions which are more extensive, the existence is
                                                                                  acknowledged of an obligation incumbent on an employer, not
                                                                                  being an approved maintenance organisation, to furnish to a
 ---pagebreak--- C 19/10                 EN                      Official Journal of the European Communities                                      25.1.2003
       former employee, at his request, the documents relating to his      Chamber) of 26 October 2002 received at the Court Registry
       qualifications and professional experience gained during his        on 31 October 2002, for a preliminary ruling in the criminal
       employment.                                                         proceedings against Silvio Berlusconi on the following ques-
                                                                           tions:
( 1) OJ C 303, 27.10.2001.
                                                                           1.    Does Article 6 of Directive 68/151/EEC ( 1) on co-ordi-
                                                                                 nation of safeguards which, for the protection of the
                                                                                 interests of members and others, are required by Member
                                                                                 States of companies within the meaning of the second
                                                                                 paragraph of Article 58 of the Treaty, with a view
                                                                                 to making such safeguards equivalent throughout the
Reference for a preliminary ruling by the Bundespat-                             Community concern not only cases of failure to publish
entgericht by order of that Court of 26 June 2002 in the                         the balance sheet and profit and loss account, but also
complaint proceedings of Deutsche Telekom AG against
                                                                                 cases where those documents are published but their
           DKV Deutsche Krankenversicherung AG                                   contents are false, given that the harm to the interests of
                                                                                 members and third parties is clearly greater in the latter
                          (Case C-367/02)                                        case? Is the directive intended in that respect to lay down
                                                                                 a minimum level of protection at Community level
                           (2003/C 19/18)                                        leaving it to the Member States to put in place means of
                                                                                 protection against the submitting of false balance sheets
                                                                                 or the publishing of false company accounts?
Reference has been made to the Court of Justice of the
European Communities by order of the (Federal Patent Court)                2.    Do the criteria of effectiveness, proportionality and
of 26 June 2002, received at the Court Registry on 14 October                    dissuasiveness, which the penalties to be adopted by the
2002, for a preliminary ruling in the complaint proceedings                      Member States under Council Directive 68/151 must
of Deutsche Telekom AG against DKV Deutsche Krankenver-                          satisfy in order to be regarded as ‘appropriate’, refer to
sicherung AG on the following question:                                          the nature or type of penalty considered in the abstract,
                                                                                 or rather to its application in practice having regard to
Do the words ‘association with the earlier trade mark’ in the                    the structural characteristics of the legal system within
second part of Article 4(1)(b) of the Trademarks Directive (1)                   which it takes effect?
apply to the case where the earlier trade mark is attributed to
the later trade mark, the later trade mark having been formed
by adding a well known company logo, or an element in a                    3.    Are the principles set out in Council Directive 78/660/
trade mark series belonging to the owner of the later trade                      EEC (2) of 25 July 1978 based on Article 54(3)(g) of the
mark, to the earlier trade mark, which is a one-word logo                        Treaty on the annual accounts of certain types of
which is neither the undertaking’s logo nor an element in a                      companies, Council Directive 83/349/EEC (3) of 13 June
trade mark series and is of average distinctiveness?                             1983 based on Article 54(3)(g) of the Treaty on consoli-
                                                                                 dated accounts and Council Directive 90/605/EEC (4) of
                                                                                 8 November 1990 amending Directive 78/660/EEC on
( 1) First Council Directive 89/104/EEC of 21 December 1988 to                   annual accounts and Directive 83/349/EEC on consoli-
     approximate the laws of the Member States relating to trade                 dated accounts as regards the scope of those directives,
     marks (OJ L 40 of 11.02.1989, p. 1).                                        upon which national measures relating to the drafting
                                                                                 and contents of annual accounts and annual reports, in
                                                                                 particular, of capital companies, must be based, to be
                                                                                 interpreted as precluding a Member State from setting
                                                                                 minimum thresholds below which inaccurate statements
                                                                                 in annual accounts and annual reports relating to com-
                                                                                 panies limited by shares, partnerships limited by shares
Reference for a preliminary ruling by the Tribunale di                           and limited liability companies are not punishable?
Milano, Prima Sezione penale by order of that court of
26 October 2002 in criminal proceedings against Silvio
                             Berlusconi
                                                                           (1 ) OJ, English Special Edition 1968 (I), p. 41.
                          (Case C-387/02)                                  (2 ) OJ 1978 L 222, p. 11.
                                                                           (3 ) OJ 1983 L 193, p. 1.
                           (2003/C 19/19)                                  (4 ) OJ 1990 L 317, p. 60.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Prima Sezione penale (Milan District Court, First Criminal