CELEX: C2003/264/27
Language: en
Date: 2003-11-01 00:00:00
Title: Case C-347/03: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio — Sezione Seconda ter — by order of that Court of 9 June 2003 in the case of Regione Autonoma Friuli Venezia Giulia and Agenzia Regionale per lo Sviluppo Rurale (ERSA) against Ministero per le Politiche Agricole e Forestali and Regione Veneto

1.11.2003             EN                         Official Journal of the European Union                                          C 264/17
Reference for a preliminary ruling by the Tribunale                           its entirety, should the prohibition of the use in Italy after
Amministrativo Regionale del Lazio — Sezione Seconda                          2007 of the name ‘Tocai’, which arises from the exchange
ter — by order of that Court of 9 June 2003 in the case of                    of letters between the parties to the agreement, annexed
Regione Autonoma Friuli Venezia Giulia and Agenzia                            to the agreement, be regarded as invalid and of no
Regionale per lo Sviluppo Rurale (ERSA) against Minis-                        effect because it is inconsistent with the rules governing
tero per le Politiche Agricole e Forestali and Regione                        geographical homonyms established in the agreement
                             Veneto                                           itself (see Article 4(5) of the protocol to the agreement)?
                         (Case C-347/03)
                                                                         4.   Should the Second Joint Declaration annexed to the 1993
                        (2003/C 264/27)                                       agreement (OJ 1993 L 337), which implies that the
                                                                              contracting parties were unaware, at the time of their
                                                                              negotiations, of the existence of homonyms connected
                                                                              with European and Hungarian wines, be regarded as a
                                                                              clear misrepresentation of reality (given that the Italian
                                                                              and Hungarian names used to refer to ‘Tocai’ wines have
Reference has been made to the Court of Justice of the                        existed alongside each other for centuries, were officially
European Communities by order of the Tribunale Amministra-                    recognised in 1948 in an agreement between Italy and
tivo Regionale del Lazio — Sezione Seconda ter (Regional                      Hungary and were recently brought within the scope of
Administrative Court for Lazio — Second Division / III) of                    Community law) such as to render null and void that part
9 June 2003, received at the Court Registry on 7 August 2003,                 of the 1993 agreement which prohibits the use in Italy of
for a preliminary ruling in the case of Regione Autonoma                      the name Tocai, on the basis of Article 48 of the Vienna
Friuli Venezia Giulia and Agenzia Regionale per lo Sviluppo                   convention on the law of the Treaties?
Rurale (ERSA) against Ministero per le Politiche Agricole e
Forestali and Regione Veneto on the following questions:
1.    Can the Europe Agreement establishing an association
      between the European Communities and their Member                  5.   In light of Article 59 of the Vienna convention on the
      States, of the one part, and the Republic of Hungary, of                law of the Treaties, is the TRIPS agreement on trade-
      the other part, concluded on 16 December 1991 and                       related aspects of intellectual property rights (OJ 1994
      published in OJ 1993 L 347, provide a proper and                        L 336), which was concluded within the context of the
      sufficient legal basis for conferring on the European                   World Trade Organisation and entered into force on
      Community power to conclude the Community Agree-                        1 January 1996, thus after the Community Agreement of
      ment between the European Community and the Repub-                      1993 (OJ 1994 L 337) entered into force, to be interpret-
      lic of Hungary on the reciprocal protection and control                 ed as meaning that its provisions governing homonyms
      of wine names of 29 November 1993 (1) (OJ 1993                          in vine names apply in place of those of the Community
      L 337), with particular reference to Article 65(1), to joint            Agreement of 1993 where there is inconsistency between
      declaration no 13 and to Annex XIII (points 3, 4 and 5)                 the two, given that the parties to both agreements are the
      of the European Agreement of 1991 on the possible                       same?
      reservation of the sovereignty and jurisdiction of the
      Member States in the matter of national geographical
      names used with reference to food and wine and restraint
      of any transfer of jurisdiction of competence in that
      matter to the European Community.
                                                                         6.   In the case of two names that are homonyms and refer to
                                                                              two different wines produced in two different countries
2.    In view of what is said in opinion no 1/94 of the Court                 both party to the TRIPS Agreement (and both where the
      of Justice of the European Communities concerning                       homonym relates to two geographical names used in
      the exclusive jurisdiction of the European Community,                   both the countries party to TRIPS and where it relates to
      should the Community Agreement between the European                     a geographical name in one country and the like name
      Community and the Republic of Hungary on the protec-                    relates to a vine traditionally cultivated in another country
      tion and control of wine names of 29 November 1993                      party to TRIPS), must Articles 22 to 24 of the Third Part
      (OJ 1993 L 337), which specifies the protection of                      of Annex C to the Treaty Establishing the World Trade
      geographical names which have intellectual and commer-                  Organisation, which contains the TRIPS Agreement (OJ
      cial property significance, be declared invalid and of no               1994 L 336), which entered into force on 1 January
      effect within the Community legal order because the                     1996, be interpreted as meaning that both the names
      agreement itself has not been ratified by the individual                may continue to be used provided that they have been
      Member States of the European Community?                                used in the past by the respective producers either in
                                                                              good faith or for at least 10 years prior to 15 April 1994
                                                                              (Article 24(4)) and each name clearly indicates the
3.    In the event that the Community Agreement of 1993 (OJ                   country or region or area of the origin of the wine to
      1993 L 337) is to be regarded as lawful and applicable in               which it refers in such a way as not to mislead consumers?
 ---pagebreak--- C 264/18               EN                         Official Journal of the European Union                                        1.11.2003
7.    Does the right of ownership set out in Article 1 of                      the conclusion of the contract were held in a doorstep-
      Protocol No 1 to the European Convention on Human                        selling situation, as defined in Paragraph 1 of the Gesetz
      Rights (The Rome Convention of 1950) and taken up in                     über den Widerruf von Haustürgeschäften und ähnlichen
      Article 17 of the Charter of Fundamental Rights of the                   Geschäften (Law on the cancellation of doorstep trans-
      European Union proclaimed in Nice in October 2000                        actions and analogous transactions), both as regards the
      also cover intellectual property in the names of the places              contract for the purchase of the immovable property
      of origin of wines and the exploitation of those names,                  and the loan agreement serving solely to finance that
      and, consequently, does the principle expressed by that                  purchase?
      law preclude application of the agreement set out in the
      exchange of letters annexed to the Agreement between                2.   Are the requirements of the rule concerning a high
      the European Community and the Republic of Hungary                       level of protection in the field of consumer protection
      on reciprocal protection and control of wine names (OJ                   (Article 95(3) EC) and the effectiveness of consumer
      1994 L 337), but not included in the body of that                        protection safeguarded by Directive 85/577/EEC satisfied
      agreement, under which wine-producers of the Friuli-                     by a national legal system or the interpretation thereof
      Venezia Giulia region are not permitted to use the name                  which limits merely to the reversal of the loan agreement
      ‘Tocai Friulano’, particularly in view of the total lack of              the legal effects of the revocation of the declaration of
      any compensation to the wine-producers of Friuli-Vene-                   intent to enter into a loan agreement, even in connection
      zia Giulia thus dispossessed, the lack of any general public             with such capital investment models in which the loan
      interest justifying their dispossession and the evident                  would not have been granted at all without the acquisition
      disregard for the principle of proportionality?                          of the immovable property?
8.    In the event that it is held that the Community laws                3.   Is a national rule on the legal effects of cancelling a loan
      contained in the Community Agreement between the                         agreement to the effect that the cancelling consumer
      European Community and the Republic of Hungary on                        must pay back the loan proceeds to the financing bank,
      the protection and control of wine names of 29 Novem-                    even though according to the plan drawn up for the
      ber 1993 (OJ 1993 L 337) and/or the exchange of letters                  capital investment the loan serves solely to finance the
      annexed thereto are unlawful to the extent described in                  immovable property and is paid directly to the vendor of
      the preceding questions, must the provisions of Regu-                    the immovable property, consistent with the protective
      lation (EC) No 753/2002 (2), under which use of the                      purpose of the rule on cancellation laid down in
      name ‘Tocai Friulano’ is to be prohibited after 31 March                 Article 5(2) of Directive 85/577/EEC?
      2007 (Article 19(2)) be regarded as invalid and of no
      effect?                                                             4.   Where a legal effect of cancellation, under national law,
                                                                               results in the consumer being required, after declaring
                                                                               cancellation, immediately to pay back — in accordance
(1) Read: 23 November 1993.                                                    with the plan drawn up for the capital investment — the
(2) OJ L 118 of 4.5.2002, p. 1.                                                loan proceeds which have thus far not been redeemed at
                                                                               all, plus interest thereon at the normal market rate, is this
                                                                               effect contrary to the rule concerning a high level of
                                                                               protection in the field of consumer protection
                                                                               (Article 95(3) EC) and to the principle of the effectiveness
Reference for a preliminary ruling by the Landgericht                          of consumer protection enshrined in Directive 85/577/
Bochum by order of that Court of 29 July 2003 in the                           EEC?
proceedings between 1. Mrs Elisabeth Schulte, 2. Mr Wolf-
   gang Schulte and Deutsche Bausparkasse Badenia AG                      (1) OJ L 372, p. 31.
                         (Case C-350/03)
                         (2003/C 264/28)
                                                                          Reference for a preliminary ruling by the Bundesgerichts-
Reference has been made to the Court of Justice of the                    hof by order of that Court of 9 July 2003 in the case of
European Communities by order of the Landgericht Bochum                   Dr Elisabeth Mayer against Versorgungsanstalt des Bundes
(Bochum Regional Court) of 29 July 2003, received at the                                            und der Länder
Court Registry on 11 August 2003, for a preliminary ruling in
the proceedings between 1. Mrs Elisabeth Schulte, 2. Mr Wolf-                                      (Case C-356/03)
gang Schulte and Deutsche Bausparkasse Badenia AG on the
following questions:                                                                               (2003/C 264/29)
1.    Does Article 3(2)(a) of Council Directive 85/577/EEC (1)
      of 20 December 1985 to protect the consumer in respect              Reference has been made to the Court of Justice of the
      of contracts negotiated away from business premises also            European Communities by order of the Bundesgerichtshof
      cover such contracts for the purchase of immovable                  (Federal Court of Justice) of 9 July 2003, received at the Court
      property which must be regarded as merely a component               Registry on 18 August 2003, for a preliminary ruling in the
      of a credit-financed capital investment model and in the            case of Dr Elisabeth Mayer against Versorgungsanstalt des
      case of which the contract negotiations conducted up to             Bundes und der Länder on the following questions: