CELEX: C2003/304/06
Language: en
Date: 2003-12-13 00:00:00
Title: Judgment of the Court of 21 October 2003 in Joined Cases C-317/01 and C-369/01 (Reference for a preliminary ruling from the Bundessozialgericht): Eran Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit (EEC-Turkey Association — Interpretation of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 — Abolition of restrictions on the freedom of movement for workers, on the freedom of establishment and on the freedom to provide services — "Standstill" clauses — Direct effect — Scope — Legislation of a Member State requiring a work permit in the international road haulage sector)

C 304/4                  EN                          Official Journal of the European Union                                            13.12.2003
1.    Article 93(3) of the EC Treaty (now Article 88(3) EC) must be          of 19 September 1980 on the development of the Association,
      interpreted as precluding, in circumstances such as those in           adopted by the Association Council set up by the Association
      the main proceedings, the levying of charges which finance             Agreement between the European Economic Community and
      specifically an aid scheme that has been declared compatible           Turkey, the Court, composed of: V. Skouris, President, P. Jann,
      with the common market by a Commission decision, in so far             C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
      as those charges are imposed retroactively in respect of a period      A. Rosas (Presidents of Chambers), D.A.O. Edward, A. La
      prior to the date of that decision.                                    Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken,
                                                                             N. Colneric and S. von Bahr, Judges; J. Mischo, Advocate
2.    The Commission Decision of 9 August 1996 relating to aid               General; H.A. Rühl, Principal Administrator, for the Registrar,
      measure No N 366/96 does not approve the retroactive effect            has given a judgment on 21 October 2003, in which it has
      of the Law of 23 March 1998 on the establishment of a                  ruled:
      budgetary fund for the health and quality of animals and
      animal products.
(1) OJ C 303 of 27.10.2001.
                                                                             —    Article 41(1) of the Additional Protocol, signed at Brussels on
                                                                                  23 November 1970 and concluded, approved and confirmed
                                                                                  on behalf of the Community by Council Regulation (EEC)
                                                                                  No 2760/72 of 19 December 1972, and of Article 13 of
                                                                                  Decision No 1/80 of 19 September 1980 on the development
                                                                                  of the Association, adopted by the Association Council set up
                                                                                  by the Association Agreement between the European Economic
                                                                                  Community and Turkey, must be interpreted as meaning that:
                  JUDGMENT OF THE COURT                                           those two provisions have direct effect in the Member States so
                                                                                  that Turkish nationals to whom they apply are entitled to rely
                                                                                  on them before the national courts to prevent the application of
                        of 21 October 2003                                        inconsistent rules of national law;
in Joined Cases C-317/01 and C-369/01 (Reference for a
preliminary ruling from the Bundessozialgericht): Eran
Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v
                    Bundesanstalt für Arbeit (1)                             —    Article 41(1) and Article 13 prohibit generally the introduction
                                                                                  of new national restrictions on the right of establishment and
                                                                                  the freedom to provide services and freedom of movement for
(EEC-Turkey Association — Interpretation of Article 41(1)                         workers from the date of the entry into force in the host Member
of the Additional Protocol and Article 13 of Decision No 1/                       State of the legal measure of which those articles are part;
80 — Abolition of restrictions on the freedom of movement
for workers, on the freedom of establishment and on the
freedom to provide services — ‘Standstill’ clauses — Direct
effect — Scope — Legislation of a Member State requiring a
    work permit in the international road haulage sector)                    —    Article 13 of Decision No 1/80 is applicable to Turkish
                                                                                  nationals only if their residence in the territory of the host
                                                                                  Member State is not only lawful but for a sufficient period to
                           (2003/C 304/06)                                        allow them progressively to become integrated there;
                    (Language of the case: German)
                                                                             —    in circumstances such as those in the cases in the main
(Provisional translation; the definitive translation will be published
                                                                                  proceedings, Article 41(1) of the Additional Protocol is
                    in the European Court Reports)
                                                                                  applicable to international road haulage of goods originating
                                                                                  in Turkey, where those services are carried out in the territory of
                                                                                  a Member State;
In Joined Cases C-317/01 and C-369/01: Reference to the
Court under Article 234 EC by the Bundessozialgericht
(Germany) for a preliminary ruling in the proceedings pending
before that court between Eran Abatay and Others (C-317/01)                  —    the protection of Article 41(1) can be relied on not only by an
Nadi Sahin (C-369/01) and Bundesanstalt für Arbeit, on the                        undertaking established in Turkey which performs services in a
interpretation of Article 41(1) of the Additional Protocol                        Member State but also by the employees of such an undertaking
signed at Brussels on 23 November 1970 and concluded,                             to preclude a new restriction on the freedom to provide services;
approved and confirmed on behalf of the Community by                              however, it may not be relied on to that end by an undertaking
Council Regulation (EEC) No 2760/72 of 19 December 1972                           established in a Member State where those using the services
(JO 1972 L 293, p. 1) and of Article 13 of Decision No 1/80                       are established in the same Member State;
 ---pagebreak--- 13.12.2003               EN                            Official Journal of the European Union                                                 C 304/5
—     Article 41(1) precludes the introduction into the national               court between Adidas-Salomon AG, formerly Adidas AG,
      legislation of a Member State of a requirement of a work permit          Adidas Benelux BV and Fitnessworld Trading Ltd, on the
      in order for an undertaking established in Turkey to provide             interpretation of Article 5(2) of First Council Directive 89/
      services in the territory of that State, if such a permit was not        104/EEC of 21 December 1988 approximating the laws of the
      already required at the time of the entry into force of the              Member States relating to trade marks (OJ 1989 L 40, p. 1),
      Additional Protocol;                                                     the Court (Sixth Chamber), composed of: J.-P. Puissochet,
                                                                               President of the Chamber, C. Gulmann (Rapporteur), F. Ma-
                                                                               cken, N. Colneric and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,
—     it is for the national court to determine whether the national           Advocate General; M.-F. Contet, Principal Administrator, for
      legislation applied to Turkish nationals such as the applicants          the Registrar, has given a judgment on 23 October 2003, in
      in the main proceedings is less favourable than that applicable          which it has ruled:
      at the time of the entry into force of the Additional Protocol.
(1) OJ C 303 of 27.10.2001, OJ C 348 of 08.12.2001.
                                                                               1.   A Member State, where it exercises the option provided
                                                                                    by Article 5(2) of First Council Directive 89/104/EEC of
                                                                                    21 December 1988 to approximate the laws of the Member
                                                                                    States relating to trade marks, is bound to grant the specific
                                                                                    protection in question in cases of use by a third party of a later
                                                                                    mark or sign which is identical with or similar to the registered
                                                                                    mark with a reputation, both in relation to goods or services
                                                                                    which are not similar and in relation to goods or services which
                                                                                    are identical with or similar to those covered by that mark.
                  JUDGMENT OF THE COURT
                           (Sixth Chamber)                                     2.   The protection conferred by Article 5(2) of Directive 89/104 is
                                                                                    not conditional on a finding of a degree of similarity between
                                                                                    the mark with a reputation and the sign such that there exists
                                                                                    a likelihood of confusion between them on the part of the
                        of 23 October 2003
                                                                                    relevant section of the public. It is sufficient for the degree of
                                                                                    similarity between the mark with a reputation and the sign to
                                                                                    have the effect that the relevant section of the public establishes
in Case C-408/01 (Reference for a preliminary ruling from                           a link between the sign and the mark.
the Hoge Raad der Nederlanden): Adidas-Salomon AG,
formerly Adidas AG, Adidas Benelux BV v Fitnessworld
                            Trading Ltd (1)
                                                                               3.   The fact that a sign is viewed as an embellishment by the
(Directive 89/104/EEC — Article 5(2) — Trade marks with                             relevant section of the public is not, in itself, an obstacle to the
a reputation — Protection against use of a sign in relation                         protection conferred by Article 5(2) of Directive 89/104 where
to identical or similar goods or services — Degree of                               the degree of similarity is none the less such that the relevant
similarity between the mark and the sign — Effect on the                            section of the public establishes a link between the sign and the
           public — Sign viewed as an embellishment)                                mark. By contrast, where, according to a finding of fact by the
                                                                                    national court, the relevant section of the public views the sign
                                                                                    purely as an embellishment, it necessarily does not establish any
                                                                                    link with a registered mark, with the result that one of the
                           (2003/C 304/07)                                          conditions of the protection conferred by Article 5(2) of
                                                                                    Directive 89/104 is then not satisfied.
                     (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                             (1) OJ C 3 of 5.1.2002.
In Case C-408/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that