CELEX: C1998/340/11
Language: en
Date: 1998-11-07 00:00:00
Title: JUDGMENT OF THE COURT (First Chamber) of 29 September 1998 in Case C-263/97 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. Intervention Board for Agricultural Produce, ex parte First City Trading Ltd and Others (Agriculture - Common organisation of the markets - Beef - Export refunds - Beef of British origin repatriated to the United Kingdom as a result of the announcements and decisions made in relation to 'mad cow disease' - Force majeure)

C 340/6               EN                  Official Journal of the European Communities                                    7.11.98
Rühl, and subsequently D. Louterman-Hubeau, Principal                H. Ragnemalm, M. Wathelet and R. Schintgen (Presidents
Administrators, for the Registrar, has given a judgment on           of Chambers), P. J. G. Kapteyn, J. L. Murray, D. A. O.
29 September 1998, in which it:                                      Edward, G. Hirsch, P. Jann and L. Sevón, Judges; F. G.
                                                                     Jacobs, Advocate General; H. von Holstein, Deputy
                                                                     Registrar, for the Registrar, has given a judgment on
1. dismisses the pleas of inadmissibility;                           29 September 1998, in which it has ruled:
2. declares that, by failing to provide for appropriate              1. On a proper construction of Article 4(1)(b) of First
     penalties in cases where companies limited by shares                Council Directive 89/104/EEC of 21 December 1988
     fail to effect compulsory disclosure of their annual                to approximate the laws of the Member States relating
     accounts as prescribed, in particular, by Article 2(1)(f),          to trade marks, the distinctive character of the earlier
     and Articles 3 and 6 of the First Council Directive                 trade mark, and in particular its reputation, must be
     68/151/EEC of 9 March 1968 on coordination of                       taken into account when determining whether the
     safeguards which, for the protection of the interests of            similarity between the goods or services covered by the
     members and others are required by Member States                    two trade marks is sufficient to give rise to the
     of companies within the meaning of the second                       likelihood of confusion.
     paragraph of Article 58 of the Treaty, with a view to
     making such safeguards equivalent throughout the
     Community, in conjunction with Article 47(1) of the             2. There may be a likelihood of confusion within the
     Fourth Council Directive 78/660/EEC of 25 July 1978                 meaning of Article 4(1)(b) of Directive 89/104/EEC
     based on Article 54(3)(g) of the Treaty on the annual               even where the public perception is that the goods or
     accounts of certain types of companies, the Federal                 services have different places of production. By
     Republic of Germany has failed to fulfil its obligations            contrast, there can be no such likelihood where it does
     under those directives;                                             not appear that the public could believe that the goods
                                                                         or services come from the same undertaking or, as the
                                                                         case may be, from economically-linked undertakings.
3. orders the Federal Republic of Germany to pay the
     costs.                                                          (1) OJ C 94 of 22.3.1997.
(1) OJ C 208 of 12.8.1995.
                                                                                   JUDGMENT OF THE COURT
                                                                                            (First Chamber)
               JUDGMENT OF THE COURT
                                                                                         of 29 September 1998
                    of 29 September 1998
                                                                     in Case C-263/97 (reference for a preliminary ruling from
in Case C-39/97 (reference for a preliminary ruling from             the High Court of Justice, Queen's Bench Division): The
the Bundesgerichtshof): Canon Kabushiki Kaisha v.                    Queen v. Intervention Board for Agricultural Produce, ex
                Metro-Goldwyn-Mayer Inc. (1)                                  parte First City Trading Ltd and Others (1)
(Trade mark law Ð Likelihood of confusion Ð Similarity               (Agriculture Ð Common organisation of the markets Ð
                     of goods or services)                           Beef Ð Export refunds Ð Beef of British origin
                        (98/C 340/10)                                repatriated to the United Kingdom as a result of the
                                                                     announcements and decisions made in relation to mad
                                                                                    cow disease' Ð Force majeure)
               (Language of the case: German)
                                                                                             (98/C 340/11)
  (Provisional translation; the definitive translation will be                      (Language of the case: English)
          published in the European Court Reports)
                                                                     In Case C-263/97: reference to the Court under Article 177
In Case C-39/97: reference to the Court under Article 177            of the EC Treaty by the High Court of Justice, Queen's
of the EC Treaty from the Bundesgerichtshof (Federal                 Bench Division (England and Wales), for a preliminary
Court of Justice) (Germany), for a preliminary ruling in             ruling in the proceedings pending before that court
the proceedings pending before that court between Canon              between The Queen and Intervention Board for
Kabushiki Kaisha and Metro-Goldwyn-Mayer Inc.,                       Agricultural Produce, ex parte First City Trading Ltd and
formerly Pathe Communications Corporation Ð on the                   Others, on the interpretation of Articles 23 and 33
interpretation of Article 4(1)(b) of First Council Directive         of Commission Regulation (EEC) No 3665/87 of
89/104/EEC of 21 December 1988 to approximate the                    27 November 1987 laying down common detailed rules
laws of the Member States relating to trade marks (OJ                for the application of the system of export refunds on
L 40 of 11.2.1989, p. 1) Ð the Court, composed of: G. C.             agricultural products (OJ L 351 of 14.12.1987, p. 1) and
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              on the validity of Commission Decision 96/239/EC of
 ---pagebreak--- 7.11.98               EN                  Official Journal of the European Communities                                      C 340/7
27 March 1996 on emergency measures to protect against               3. Consideration of question 4 has not disclosed any
bovine spongiform encephalopathy (OJ L 78 of 28.3.1996,                   factor of such a kind as to affect the validity of
p. 47) and of Commission Regulation (EC) No 773/96 of                     Decison 96/239/EC.
26 April 1996 laying down special measures derogating
from Regulations (EEC) No 3665/87, (EEC) No 3719/88
and (EEC) No 1964/82 in the beef and veal sector (OJ                      Commission Regulation (EC) No 773/96 of 26 April
L 104 of 27.4.1996, p. 19) Ð the Court (First Chamber),                   1996 laying down special measures derogating from
composed of: M. Wathelet, President of Chamber, P. Jann                   Regulations (EEC) No 3665/87, (EEC) No 3719/88
and L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate                  and (EEC) No 1964/82 in the beef and veal sector is
General; L. Hewlett, Administrator, for the Registrar, has                not rendered invalid by the fact that it prohibits
given a judgment on 29 September 1998, in which it has                    exporters, in the circumstances described in the answer
ruled:                                                                    to the second question, from retaining all or part of
                                                                          any export refunds paid in advance.
1. Articles 23 and 33 of Commission Regulation (EEC)                 (1) OJ C 295 of 27.9.1997.
    No 3665/87 of 27 November 1987 laying down
    common detailed rules for the application of the
    system of export refunds on agricultural products, in
    the version thereof resulting from Commission
    Regulation (EEC) No 1615/90, must be interpreted as
    meaning that where, as a result of, in particular, force
    majeure, goods do not reach their country of                                    JUDGMENT OF THE COURT
    destination but are repatriated to the Member State of                                  (Sixth Chamber)
    export, the exporter is obliged to repay any export
    refunds paid in advance.                                                               of 1 October 1998
                                                                     in    Case   C-285/96: Commission of the             European
2. Regulation (EEC) No 3665/87 does not contravene                                Communities v. Italian Republic (1)
    the general principles of Community law, in particular           (Failure by a Member State to fulfil its obligations Ð
    the principles of force majeure, the protection of               Non-transposition of Directive 76/464/EEC Ð Judgment
    legitimate expectations, proportionality or equity, by                                      by default)
    prohibiting exporters of beef from the United
    Kingdom from retaining all or part of any export                                          (98/C 340/12)
    refunds paid in advance in circumstances where:
                                                                                     (Language of the case: Italian)
    a) exports of beef from the United Kingdom to third
        countries have been prohibited by Commission
        Decision 96/239/EC of 27 March 1996 on                         (Provisional translation; the definitive translation will be
        emergency measures to protect against bovine                           published in the European Court Reports)
        spongiform encephalopathy;
                                                                     In Case C-285/96: Commission of the European
    b) bans on the importation of beef from the United               Communities (Agents: Götz zur Hausen and Paolo
        Kingdom have also been imposed by a number of                Stancanelli) v. Italian Republic Ð application for a
        third countries;                                             declaration that, by failing to adopt pollution reduction
                                                                     programmes with quality objectives for 99 dangerous
    c) exporters of beef were in the process of carrying             substances set out in List I of the Annex, alternatively by
        goods to third countries on the date on which                failing to communicate to the Commission summaries of
        Decision 96/239/EC was adopted;                              those programmes and the results of their implementation,
                                                                     contrary to Article 7 of Council Directive 76/464/EEC of
                                                                     4 May 1976 on pollution caused by certain dangerous
    d) those exporters were forced to repatriate the beef            substances discharged into the aquatic environment of the
        to the United Kingdom;                                       Community (OJ L 129 of 18.5.1976, p. 23), and by
                                                                     failing to provide the relevant information requested in
    e) the exporters had received, in accordance with                breach of Article 5 of the EC Treaty, the Italian Republic
        Council Regulation (EEC) No 565/80 of 4 March                has failed to fulfil its obligations under the EC Treaty Ð
        1980 on the advance payment of export refunds in             the Court (Sixth Chamber), composed of: H. Ragnemalm,
        respect of agricultural products and Commission              President of the Chamber, R. Schintgen, G. F. Mancini,
        Regulation (EEC) No 3665/87, advance payments                P. J. G. Kapteyn and G. Hirsch (Rapporteur), Judges; J.
        of export refunds in respect of the export                   Mischo, Advocate General; R. Grass, Registrar, has given
        transactions at issue; and                                   a judgment on 1 October 1998, in which it:
    f) the exporters suffered loss as a result of their              1. declares that, by failing to adopt pollution reduction
        inability to sell their beef on the export markets in             programmes with quality objectives for 99 dangerous
        question.                                                         substances set out in List I of the Annex to Council