CELEX: C1997/387/07
Language: en
Date: 1997-12-20 00:00:00
Title: JUDGMENT OF THE COURT of 4 November 1997 in Case C-20/96 (reference for a preliminary ruling from the Social Security Commissioner): Kelvin Albert Snares v. The Adjudication Officer (Social security - Special non-contributory benefits - Articles 4 (2a) and 10a of Regulation (EEC) No 1408/71 - Disability living allowance - Non-exportability)

C 387/4                  EN               Official Journal of the European Communities                                  20 . 12 . 97
Almeida, P. J. G. Kapteyn, J. L. Murray, D.     A. O. Edward,                       JUDGMENT OF THE COURT
J.-P. Puissochet, G. Hirsch, P. Jann and L.     Sevon, Judges,
F. G. Jacobs, Advocate General; H.              von Holstein,                             of 4 November 1997
Administrator, for the Registrar, has given     a judgment on
4 November 1997, in which it has ruled:                              in Case C-20/96 (reference for a preliminary ruling from
                                                                     the Social Security Commissioner): Kelvin Albert Snares
                                                                                     v. The Adjudication Officer (')
1 . where a question relating to the interpretation of the
     First Council Directive (89/104/EEC) of 21 December             (Social security — Special non-contributory benefits —
     1988 to approximate the laws of the Member States               Articles 4 (2a) and 10a of Regulation (EEC) No 1408/71
     relating to trade marks is raised in proceedings in one             — Disability living allowance — Non-exportability)
     of the Benelux Member States concerning the
                                                                                              ( 97/C 387/07 )
     interpretation of the Uniform Benelux Law on Trade
     Marks, a court against whose decisions there is no
     remedy under national law, as is the case with both
     the Benelux Court and the Hoge Raad der
     Nederlanden, must make a reference to the Court of                              (Language of the case: English)
     Justice under the third paragraph of Article 1 77 of the
     EC Treaty. However, that obligation loses its purpose
     and is thus emptied of its substance when the question
     raised is substantially the same as the question which
     has already been the subject of a preliminary ruling in         In Case C-20/96 : reference to the Court under Article 177
     the same national proceedings;                                  of the EC Treaty from the Social Security Commissioner
                                                                     ( United Kingdom ), for a preliminary ruling in the
                                                                     proceedings pending before that court between Kelvin
2 . on a proper interpretation of Articles 5 and 7 of                Albert Snares and The Adjudication Officer — on the
     Directive 89/104, when trade-marked goods have been             interpretation and validity of Articles 4 ( 2a ) and 10a of
     put on the Community market by the proprietor of the            Council Regulation ( EEC ) No 1408/71 of 14 June 1971
     trade mark or with his consent, a reseller, besides             on the application of social security schemes to employed
     being free to resell those goods, is also free to make          persons, to self-employed persons and to members of their
     use of the trade mark in order to bring to the public 's        families moving within the Community, as amended and
     attention the further commercialization of those                updated by Council Regulation ( EEC) No 2001 /83 of
     goods;                                                          2 June 1983 ( OJ 1983 L 230, p. 6 ), as subsequently
                                                                     amended by Council Regulation ( EEC ) No 1247/92 of
                                                                     30 April 1992 ( OJ 1992 L 136, p. 1 ) — the Court,
3 . the proprietor of a trade mark may not rely on                   composed of: G. C. Rodriguez Iglesias, President, C.
     Article 7 (2) of Directive 89/104 to oppose the use of          Gulmann, H. Ragnemalm and M. Wathelet (Presidents of
     the trade mark, by a reseller who habitually markets            Chambers ), G. F. Mancini, J. C. Moitinho de Almeida
     articles of the same kind, but not necessarily of the           ( Rapporteur ), P. J. G. Kapteyn, J. L. Murray, D. A. O.
     same quality, as the trade-marked goods, in ways                Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevon,
     customary in the reseller's sector of trade, for the            Judges; P. Leger, Advocate General; L. Hewlett,
     purpose of bringing to the public 's attention the              Administrator, for the Registrar, has given a judgment on
     further commercialization of those goods, unless it is          4 November 1997, in which it has ruled:
     established that, given the specific circumstances of the
     case, the use of the trade mark for this purpose
     seriously damages the reputation of the trade mark;
                                                                     1 . on a proper construction of Article 10a of Council
                                                                         Regulation (EEC) No 1408/71 of 14 June 1971 on the
4 . on a proper interpretation of Articles 30 and 36 of                  application of social security schemes to employed
     the EC Treaty, the proprietor of a trade mark or                    persons, to self-employed persons and to members of
     holder of copyright may not oppose their use by a                   their families moving within the Community, as
     reseller who habitually markets articles of the same                amended and updated by Council Regulation (EEC)
     kind, but not necessarily of the same quality, as the               No 2001 /83 of 2 June 1983, as subsequently amended
     protected goods, in ways customary in the reseller's                by Council Regulation (EEC) No 1247/92 of 30 April
     sector of trade, for the purpose of bringing to the                 1992, read in conjunction with Annex 11a, disability
     public 's attention the further commercialization of                living allowance falls within the scope of that
     those goods, unless it is established that, having regard           provision and is therefore a special non-contributory
     to the specific circumstances of the case, the use of               benefit within the meaning of Article 4 (2a) of that
     those goods for that purpose seriously damages their                regulation, with the result that the position of a person
     reputation.                                                         such as the claimant in the main proceedings, who,
                                                                         after 1 June 1992 when Regulation No 1247/92
(') OJ C 351 , 30 . 12 . 1995 .                                          entered into force, satisfied the conditions for the
                                                                         award of that benefit, is governed exclusively by the
                                                                         system of coordination established by the said
                                                                         Article 10a;
 ---pagebreak--- 20 . 12 . 97            EN                   Official Journal of the European Communities                                      C 387/5
2 . examination of Regulation No 1247/92, in so far as it               concerned, be allocated on a pro rata basis, having regard
     sets aside, in the case of disability living allowance, the        to the distances covered in each such State.
     principle of waiver of residence clauses laid down in
     Article 10 of Regulation No 1408/71 , has not
                                                                        (') OJ C 158 , 1 . 6 . 1996 .
     disclosed any factor of such a kind as to affect its
     validity.
(') OJ C 77, 16 . 3 . 1996 .
                                                                                       JUDGMENT OF THE COURT
                                                                                                  ( Fourth Chamber)
                                                                                                of 6 November 1997
               JUDGMENT OF THE COURT
                                                                        in Case C- 164/96 ( reference for a preliminary ruling from
                          ( Fifth Chamber)                              the Consiglio di Stato ): Regione Piemonte v. Saiagricola
                       of 6 November 1997                                                                 SpA n
                                                                        (Regulation (EEC) No 797/85 — Different treatment of
in Case C- 116/96 ( reference for a preliminary ruling from
the    Bundesfinanzhof):          Reisebiiro Binder    GmbH     v.
                                                                                    individual farmers and legal persons)
            Finanzamt Stuttgart-Korperschaften (')                                                    ( 97/C 387/09 )
(Sixth VAT Directive — Cross-frontier passenger transport
— The place of supply and the taxable amount in relation
                       to transport services)
                                                                                          (Language of the case: Italian)
                             ( 97/C 387/08 )
                                                                          (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
                (Language of the case: German)
                                                                        In Case C-164/96 : reference to the Court under Article 177
  (Provisional translation; the definitive translation will be          of the EC Treaty from the Consiglio di Stato for a
          published in the European Court Reports)                      preliminary ruling in the proceedings pending before that
                                                                        court between Regione Piemonte and Saiagricola SpA —
                                                                        on the interpretation of Council Directive 72/159/EEC of
In Case C-l 16/96 : reference to the Court under Article 177            17 April 1972 on the modernization of farms ( OJ English
of the EC Treaty from the Bundesfinanzhof ( Federal
                                                                        Special Edition 1972 ( II ), p. 324 ) and Council Regulation
Finance Court ), for a preliminary ruling in the proceedings            ( EEC ) No 797/85 of 12 March 1985 on improving the
pending before that court between Reisebiiro Binder                     efficiency of agricultural structures ( OJ 1985 L 93 , p. 1 )
                                                                        — the Court ( Fourth Chamber ), composed of: H.
GmbH and Finanzamt Stuttgart-Korperschaften — on the
interpretation of Article 9 ( 2 ) ( b ) of Sixth Council                Ragnemalm, President of the Chamber, P. J. G. Kapteyn
Directive 77/388/EEC of 17 May 1977 on the
                                                                        and J. L. Murray ( Rapporteur ), Judges; P. Leger, Advocate
harmonization of the laws of the Member States relating                 General; R. Grass, Registrar, has given a judgment on
                                                                        6 November 1997, in which it has ruled :
to turnover taxes — Common system of value added tax:
uniform basis of assessment ( OJ 1977 L 145 , p. 1 ) — the
Court ( Fifth Chamber ), composed of: C. Gulmann,
President of the Chamber, J. C. Moitinho de Almeida ,                   council Directive 72/159/EEC of 17 April 1972 on the
D. A. O. Edward, J. -P. Puissochet ( Rapporteur ) and P.                modernization of farms and Council Regulation (EEC)
Jann, Judges; A. La Pergola , Advocate General; H. von                  No 797/85 of 12 March 1985 on improving the efficiency
Holstein, Deputy Registrar, for the Registrar, has given a              of agricultural structures are to be interpreted as meaning
judgment on 6 November 1997, in which it has ruled :                    that Member States which introduce a register intended to
                                                                        determine eligibility under the system of aids established
                                                                        by Directive 72/159 are not permitted to refuse to register
                                                                        certain legal persons solely by reason of the legal form
article 9 (2) (b) of Sixth Council Directive 77/388/EEC of              they have assumed or to introduce a special system of
17 May 1977 on the harmonization of the laws of the                     identification by creating a specific register intended for
Member States relating to turnover taxes — Common                       natural persons alone.
system of value added tax: uniform basis of assessment
must be interpreted as meaning that, in the case of the
supply of cross-frontier passenger transport on an all­                 (') OJ C 197, 6 . 7. 1996 .
inclusive basis, the total consideration for that service
must, for the purposes of determining the part of the
transport operation taxable in each of the Member States