CELEX: C2000/047/20
Language: en
Date: 2000-02-19 00:00:00
Title: Case C-382/99: Action brought on 9 October 1999 by the Kingdom of the Netherlands against the Commission of the European Communities

C 47/12               EN                      Official Journal of the European Communities                                        19.2.2000
   answers the description given in Article 2 of the directive           9. XIII. (a) Is it consistent with the scheme of the directive
   (and Article 1 of the BMW ) of a mark, must a (new) word                   and the Treaty of Paris for a sign to be registered for
   of that kind in principle be taken to have a distinctive                   specific goods or services subject to the limitation that the
   character?                                                                 registration applies only to those goods and services in so
                                                                              far as they do not possess a specific characteristic or
                                                                              characteristics (for example, registration of the sign ‘Post-
6. X. (b) If not, must a word of that kind (leaving aside                     kantoor’ for the services: direct-mail campaigns and the
   familiarity through naturalisation) in principle be taken to               issue of franking seals ‘so long as they are not connected
   have no distinctive character, and that that may be                        with a post office’)?
   otherwise only under attendant circumstances which result
   in the combination being more than the sum of its parts?              10. XVI. Is it also material to the answer to be given to the
                                                                              questions whether a corresponding sign for such goods or
                                                                              services is registered as a mark in another Member State?
   Is it of any importance in that connection whether the sign
   is the only or at any rate an obvious term for indicating
   the relevant characteristic or (combination of) character-
   istics, or whether there are synonyms which may reason-
   ably also be used, or that the word indicates a commercially
   essential or rather an incidental attribute of the product or
   service?                                                              Action brought on 9 October 1999 by the Kingdom of
                                                                         the Netherlands against the Commission of the European
                                                                                                     Communities
   Is it also relevant that under Article 13C of the BMW the
   right to a trade mark expressed in one of the national or                                       (Case C-382/99)
   regional languages of the Benelux area automatically
   extends to its translation in another of those languages?                                        (2000/C 47/20)
7. XI. Does the mere fact that a descriptive sign is also lodged         An action against the Commission of the European Communi-
   for registration as a mark for goods and/or services of               ties was brought before the Court of Justice of the European
   which the sign is not descriptive warrant an assessment               Communities on 9 October 1999 by the Kingdom of the
   that the sign thereby has distinctive character as regards            Netherlands, represented by Marc Fierstra, Head of the Euro-
   those goods and/or services (for example the sign ‘Postkan-           pean Law Section of the Legal Affairs Department of the
   toor’ for furniture)?                                                 Ministry of Foreign Affairs, The Hague, acting as Agent.
                                                                         The applicant claims that the Court should:
   If not, in answering the question whether such descriptive
   sign has distinctive character for such goods and/or                  (1) annul Articles 2 and 3 of the Commission’s decision
   services, must regard be had to the possibility that, in light             (C(1999) 2539 final) of 20 July 1999 — notified on
   of its descriptive meaning or meanings, (a part of) the                    5 August 1999 — concerning State aid granted by the
   public will not perceive that sign as a distinctive sign for               Netherlands with regard to 633 Netherlands petrol stations
   (all or some) of those goods or services?                                  in the region bordering Germany;
                                                                         (2) order the Commission to pay the costs.
8. XII. (a) In the assessment of the abovementioned questions
   is significance to be attached to the fact that, since the
   Benelux countries have chosen to have applications for                Pleas in law and main arguments
   registration of trade marks examined by the Benelux Trade             — Infringement of Article 87(1) EC, of the de minimis rule (1)
   Marks Office as a requirement of registration, the appraisal               and of the principles of legal certainty, equal treatment and
   policy of the Office under Article 6 bis of the BMW                        the protection of legitimate expectations, together with
   according to the common commentary of the Govern-                          failure to comply with the obligation, laid down by
   ments ‘must be a cautious and restrained one whereby all                   Article 253 EC, to provide a statement of reasons, all of
   concerns of commercial life must be taken into account                     the foregoing in connection with the categorical refusal to
   and efforts must be focused on establishing which are the                  approve the aid as de minimis aid granted in respect of
   evidently inadmissible applications and refusing them’?                    each individual petrol station where it was applied for by
                                                                              the operator of more than one petrol station: provided that
   If so, under what rules does it fall to be determined whether              the de minimis amount is not made available more than
   an application is ‘evidently inadmissible’?                                once in respect of each individual petrol station, it makes
                                                                              no difference, from an economic standpoint (i.e. as regards
                                                                              trade and competition between Member States), whether
        It is assumed that in contentious invalidity proceedings              the 633 subsidised petrol stations are invariably to be
        (which may be initiated after registration of a sign) in              regarded as separate undertakings or whether, in certain
        pleading invalidity of the sign in respect of which                   cases, they form part of a larger economic entity. Cus-
        registration as a mark was applied for there is no                    tomers will be guided by the brand of petrol offered for
        additional requirement that the sign be ‘evidently                    sale and — above all — by the petrol pump price. A
        inadmissible’.                                                        subsidy granted on a pro rata basis according to the
 ---pagebreak--- 19.2.2000             EN                     Official Journal of the European Communities                                            C 47/13
   number of petrol stations operated will (potentially) result         — Infringement of Article 10 EC, of Article 87(1) EC, of the
   in the same price reduction per individual petrol station as             de minimis rule and of the principles of legal certainty,
   the single grant of the de minimis amount to a petrol                    equal treatment and the protection of legitimate expec-
   station regarded as a separate undertaking. In neither case              tations, together with non-compliance with the obligation
   will there be any difference in the effects on trade and                 requiring the terms of decisions, within the meaning of
   competition between Member States.                                       Article 249 EC, to be specified with sufficient particularity
                                                                            and failure to comply with the obligation, laid down by
— In the alternative, infringement of Article 87(1) EC, of the              Article 253 EC, to provide a statement of reasons, all of
   de minimis rule and of the principles of legal certainty,                the foregoing in connection with the obligation to seek
   equal treatment and the protection of legitimate expec-                  repayment of the subsidies: it is not possible to ascertain
   tations, non-compliance with the obligation requiring the                from the decision which amounts are to be reclaimed
   terms of decisions, within the meaning of Article 249 EC,                from which persons. More fundamentally, the Netherlands
   to be specified with sufficient particularity, and failure to            Government considers that Article 10 EC and the prin-
   comply with the obligation, laid down by Article 253 EC,                 ciples of legal certainty and of the protection of legitimate
   to provide a statement of reasons, all of the foregoing in               expectations preclude any possibility of reclaiming subsi-
   connection with the division of petrol stations into the                 dies already granted pursuant to the Netherlands rules in
   categories of ‘independent’ and ‘company-owned/com-                      force. The Commission was aware — at any rate as from
   pany-operated’ undertakings.                                             18 August 1997 — of the rules in force, of the fact that
— Infringement of Article 87(1) EC, of the de minimis rule and              those rules had been implemented with effect from 1 July
   of the principles of legal certainty, equal treatment and the            1997 and of the Netherlands authorities’ view that such
   protection of legitimate expectations, together with failure             implementation was covered by its notice concerning the
   to comply with the obligation, laid down by Article 253 EC,              de minimis rule. If the Commission took a different view
   to provide a statement of reasons, all of the foregoing in               regarding the meaning of that notice, and if it considered
   connection with the indirect grant of aid to the oil compani-            — notwithstanding the notice on the de minimis rule that
   es, as approved by the Commission in the case of petrol                  the rules in force, like the grant of aid, as provisionally
   stations the exclusive purchasing agreements in respect of               notified on the basis of each individual petrol station,
   which contain a clause providing for a system of price                   needed to be assessed by the Commission in accordance
   controls: the conferment of indirect advantages on the oil               with Article 88(3) EC, then, having regard inter alia to its
   companies, as referred to by the Commission, does not                    obligation under Article 10 EC to cooperate in good faith
   constitute State aid within the meaning of Article 87 EC.                with the national authorities, it should have pointed this
   That is particularly the case where such conferment of                   out immediately and unambiguously to the Netherlands
   indirect advantages arises solely from contractual relations             authorities. The Commission omitted to do so. Moreover,
   with which the authorities have nothing whatever to do                   such a claim for repayment would conflict, vis-à-vis the
   and of which they themselves are unaware. The national                   recipients of the aid, with the principles of legal certainty
   authorities cannot be required, in the performance of their              and of the protection of legitimate expectations (which the
   functions, invariably to verify such indirect effects, which             national courts are required to respect). The notice on the
   are not apparent to them, let alone to exclude the entry into            de minimis rule created a new category of aid measures, in
   force of such effects in all circumstances. That is the position,        respect of which the requirement that aid be notified
   at any rate, in circumstances such as those of the present               and approved in advance ceased to apply. Undertakings
   case, in which the de minimis rule is applicable.                        receiving non-notified grants of aid no longer needed, in
                                                                            those circumstances, to be concerned about the illegality
— Infringement of Article 87(1) EC, of the de minimis rule                  of the aid granted, at any rate in so far as they had
   and of the principles of legal certainty, equal treatment and            reasonable grounds for thinking that that aid was covered
   the protection of legitimate expectations, non-compliance                by the de minimis rule.
   with the obligation requiring the terms of decisions, within
   the meaning of Article 249 EC, to be specified with                  (1) Notice on the de minimis rule for State aid (96/C 68/06) (OJ 1996
   sufficient particularity, together with failure to comply                C 68, p. 9).
   with the obligation, laid down by Article 253 EC, to
   provide a statement of reasons, all of the foregoing in
   connection with the declaration of the incompatibility of
   the aid as regards petrol stations in respect of which, in
   the Commission’s view, the Netherlands authorities have              Action brought on 22 October 1999 by the Commission
   provided no information or only partial information.                 of the European Communities against the French Republic
— Infringement of Article 87(3) EC and failure to comply with                                    (Case C-404/99)
   the obligation, laid down by Article 253 EC, to provide a
   statement of reasons, inasmuch as the Commission, in its                                       (2000/C 47/21)
   assessment of the compatibility of the measures to be
   regarded as aid within the meaning of Article 87(1), failed to       An action against the French Republic was brought before the
   appreciate the environmental objectives of those measures.           Court of Justice of the European Communities on 22 October
   The Netherlands rules were designed to make it possible to           1999 by the Commission of the European Communities,
   achieve an increase in excise duty, which was regarded as            represented by Enrico Traversa, Legal Adviser, acting as Agent,
   necessary for the purposes of environmental protection,              and Nicoles Coutrelis, ‘Advocate’, with an address for service
   whilst at the same time avoiding serious repercussions for           in Luxembourg at the office of Carlos Gómez de la Cruz, of its
   the operators of the petrol stations concerned.                      Legal Service, Wagner Centre, Kirchberg.