CELEX: C2003/135/07
Language: en
Date: 2003-06-07 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 10 April 2003 in Case C-65/01: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 89/655/EEC — Incomplete transposition)

7.6.2003                 EN                           Official Journal of the European Union                                               C 135/5
a preliminary ruling in the proceedings pending before that                                    JUDGMENT OF THE COURT
court between Linde AG (C-53/01), Winward Industries Inc.
(C-54/01), and and Rado Uhren AG (C-55/01), on the
interpretation of Article 3(1)(b), (c) and (e) of First Council                                          (Sixth Chamber)
Directive 89/104/EEC of 21 December 1988 to approximate
the laws of the Member States relating to trade marks (OJ
1989 L 40, p. 1), the Court, composed of: G.C. Rodríguez
                                                                                                         of 10 April 2003
Iglesias, President, J.-P. Puissochet, R. Schintgen and
C.W.A. Timmermans, Presidents of Chamber, C. Gulmann,
D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rappor-
teur), J.N. Cunha Rodrigues, and A. Rosas, Judges; D. Ruiz-                   in Case C-65/01: Commission of the European Communi-
Jarabo Colomer, Advocate General; H. von Holstein, Deputy                                           ties v Italian Republic ( 1)
Registrar, has given a judgment on 8 April 2003, in which it
has ruled:
                                                                              (Failure of a Member State to fulfil obligations — Directive
                                                                                         89/655/EEC — Incomplete transposition)
                                                                                                         (2003/C 135/07)
1.    When assessing the distinctiveness of a three-dimensional shape
      of product trade mark for the purposes of Article 3(1)(b) of                                 (Language of the case: Italian)
      First Council Directive 89/104/EEC of 21 December 1988 to
      approximate the laws of the Member States relating to trade
      marks, a stricter test than that used for other types of trade          (Provisional translation; the definitive translation will be published
      mark must not be applied.                                                                   in the European Court Reports)
2.    Independently of Article 3(1)(e) of First Directive 89/104,             In Case C-65/01, Commission of the European Communities
      Article 3(1)(c) also has significance for three-dimensional shape       (Agent: A. Aresu) v Italian Republic (Agent: U. Leanza, assisted
      of product trade marks.                                                 by D. Del Gaizo, avvocato dello Stato): Application for a
                                                                              declaration that, by failing to adopt the laws and regulations
                                                                              necessary to transpose into national law the minimum manda-
                                                                              tory requirements and, therefore, by failing to guarantee the
      When examining the ground for refusing registration in                  protection of workers, the Italian Republic has failed to fulfil
      Article 3(1)(c) of First Directive 89/104 in a concrete case,           its obligations under Article 4(1) of, and the sixth sentence of
      regard must be had to the public interest underlying that               paragraph 2.1, the second sentence of paragraph 2.2, the
      provision, which is that all three-dimensional shape of product         second to fourth sentences of paragraph 2.3, and the second
      trade marks which consist exclusively of signs or indications           to fifth indents of the second sentence of paragraph 2.8 of
      which may serve to designate the characteristics of the goods or        Annex I to, Council Directive 89/655/EEC of 30 November
      service within the meaning of that provision should be freely           1989 concerning the minimum safety and health requirements
      available to all and, subject always to Article 3(3) of the             for the use of work equipment by workers at work (second
      Directive, cannot be registered.                                        individual Directive within the meaning of Article 16(1) of
                                                                              Directive 89/391/EEC) (OJ 1989 L 393, p. 13), as amended by
                                                                              Council Directive 95/63/EC of 5 December 1995 (OJ 1995
                                                                              L 335, p. 28), the Court (Sixth Chamber), composed of:
                                                                              J.-P. Puissochet, President of the Chamber, C. Gulmann,
                                                                              F. Macken, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues,
                                                                              Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
                                                                              given a judgment on 10 April 2003, in which it:
( 1) OJ C 150 of 19.05.2001.
                                                                              1.    Declares that, by failing to adopt the laws and regulations
                                                                                    necessary to transpose into national law the minimum manda-
                                                                                    tory requirements, the Italian Republic has failed to fulfil its
                                                                                    obligations under Article 4(1) of and the sixth sentence of
                                                                                    paragraph 2.1, the second sentence of paragraph 2.2, the third
                                                                                    and fourth sentences of paragraph 2.3, and the second to fifth
                                                                                    indents of the second sentence of paragraph 2.8 of Annex I
                                                                                    to Council Directive 89/655/EEC of 30 November 1989
                                                                                    concerning the minimum safety and health requirements for the
 ---pagebreak--- C 135/6                    EN                        Official Journal of the European Union                                              7.6.2003
      use of work equipment by workers at work (second individual                  the light of all the factual and legal evidence available to it,
      Directive within the meaning of Article 16(1) of Directive 89/               whether or not the results of analyses of samples of a
      391/EEC), as amended by Council Directive 95/63/EC of                        manufacturer’s products are to be admitted as evidence that the
      5 December 1995;                                                             manufacturer has infringed a Member State’s national rules on
                                                                                   foodstuffs where the manufacturer has been unable to exercise
2.    Orders the Italian Republic to pay the costs.                                his right to a second opinion under the second subparagraph of
                                                                                   Article 7(1) of Directive 89/397. In that regard, the national
                                                                                   court must verify that the national rules on the taking of
( 1) OJ C 118 of 21.04.2001.
                                                                                   evidence applicable to such an action are not less favourable
                                                                                   than those governing similar domestic actions (the principle of
                                                                                   equivalence) and that they do not render practically impossible
                                                                                   or excessively difficult the exercise of rights conferred by
                                                                                   Community law (the principle of effectiveness). In addition, the
                                                                                   national court must consider whether such evidence must be
                   JUDGMENT OF THE COURT                                           excluded in order to avoid measures incompatible with com-
                                                                                   pliance with fundamental rights, in particular the right to a fair
                                                                                   hearing before a tribunal as laid down in Article 6(1) of the
                             (Fifth Chamber)
                                                                                   European Convention for the Protection of Human Rights and
                                                                                   Fundamental Freedoms.
                            of 10 April 2003
in Case C-276/01 (Reference for a preliminary ruling from                    (1 ) OJ C 275 of 29.9.2001.
     the Amtsgericht Schleswig): Joachim Steffensen (1)
(Directive 89/397/EEC — Official control of foodstuffs —
Second subparagraph of Article 7(1) — Analysis of samples
— Right to a second opinion — Direct effect — Admissibility
of the results of analyses as evidence in the event of an
         infringement of the right to a second opinion)
                                                                                               JUDGMENT OF THE COURT
                             (2003/C 135/08)
                     (Language of the case: German)                                                     (First Chamber)
(Provisional translation; the definitive translation will be published                                  of 10 April 2003
                      in the European Court Reports)
                                                                             in Case C-114/02: Commission of the European Communi-
                                                                                                   ties v French Republic ( 1)
In Case C-276/01: Reference to the Court under Article 234
EC by the Amtsgericht Schleswig (Germany) for a preliminary
ruling in the proceedings pending before that court against                  (Failure of a Member State to fulfil its obligations —
Joachim Steffensen, on the interpretation of the second                      Directive 98/8/EC — Failure to transpose within the pre-
subparagraph of Article 7(1) of Council Directive 89/397/EEC                                             scribed period)
of 14 June 1989 on the official control of foodstuffs (OJ 1989
L 186, p. 23), the Court (Fifth Chamber), composed of:
                                                                                                        (2003/C 135/09)
M. Wathelet, President of the Chamber, C.W.A. Timmermans
(Rapporteur), P. Jann, S. von Bahr and A. Rosas, Judges; C. Stix-
Hackl, Advocate General; M.-F. Contet, Principal Adminis-                                         (Language of the case: French)
trator, for the Registrar, has given a judgment on 10 April
2003, in which it has ruled:
                                                                             (Provisional translation; the definitive translation will be published
1.    The second subparagraph of Article 7(1) of Council Directive                               in the European Court Reports)
      89/397/EEC of 14 June 1989 on the official control of
      foodstuffs is to be construed as meaning that a manufacturer
      may rely on a right to a second opinion based on that article
      against the competent authorities of a Member State where              In Case C-114/02, Commission of the European Communities
      those authorities claim that his products fail to meet the             (Agent: L. Ström) v French Republic (Agents: G. de Bergues
      standard required by the national rules on foodstuffs on the           and E. Puisais): Application for a declaration that, by failing to
      basis of an analysis of samples of those products taken from           adopt all the laws, regulations and administrative measures
      retail outlets.                                                        necessary to comply with Directive 98/8/EC of the European
                                                                             Parliament and of the Council of 16 February 1998 concerning
2.    It is for the national court before which an action such as that       the placing of biocidal products on the market (OJ 1998
      at issue in the main proceedings has been brought to assess, in        L 123, p. 1), the French Republic has failed to fulfil its