CELEX: C1998/209/51
Language: en
Date: 1998-07-04 00:00:00
Title: Reference for a preliminary ruling by the Cour d'Appel Bruxelles (Ninth Chamber) by judgment of that court of 30 April 1998 in the case of Sebago Inc. and S.A. Ancienne Maison Dubois et Fils against S.A. G-B Unic (Case C-173/98)

4.7.98               EN                 Official Journal of the European Communities                                   C 209/25
Nicolas Schmit, Conseiler d'EÂtat, Director of International             Ð liberalises group practice, and also does so in
Economic Relations and Cooperation, acting as Agent,                         countries which did not authorise that form of
with an address for service in Luxembourg at the Ministry                    practice and that means of access, namely Italy
of Foreign Affairs, 6 Rue de la CongreÂgation.                               and Greece;
                                                                         Ð removes the obligation on migrants to acquire
The Grand Duchy of Luxembourg claims that the Court                          knowledge of the law of the host country.
should:
                                                                   Ð     Infringement of the duty to state reasons: The
(a) annul Directive 98/5/EC of the European Parliament                   contested directive offers no justification for the
     and of the Council (1) in its entirety, particularly                choice made by the Community legislature in placing
     Articles 2, 5 and 10 thereof, for infringement of the               on the same level, from the point of view of
     Treaty, omission of one of the required legal bases                 establishment, migrant lawyers practising under their
     and failure to state reasons,                                       original title and those opting for integration and to
                                                                         use the title of the host State. The third, fifth, ninth
                                                                         and tenth recitals are not a sufficient statement of
(b) order the defendants to pay the costs.                               reasons in that respect.
                                                                   (1) OJ L 77, 14.3.1998, p. 36.
Pleas in law and main arguments adduced in support:                (2) OJ L 19, 24.1.1989, p. 16.
Ð    Infringement of Article 52 of the EC Treaty: By not
     imposing any requirement for even the most minimal
     training in the law of the host State, Directive 98/5/
     EC establishes an unwarranted difference in
     treatment between nationals and migrants which                Reference for a preliminary ruling by the Cour d'Appel
     cannot be justified under Article 52 of the Treaty. In        Bruxelles (Ninth Chamber) by judgment of that court of
     reality, the contested directive extends to the system        30 April 1998 in the case of Sebago Inc. and S.A.
     of establishment the advantages enjoyed by providers             Ancienne Maison Dubois et Fils against S.A. G-B Unic
     of services' within the meaning of Article 59 of the                                (Case C-173/98)
     Treaty, which are by definition temporary. Such an
     extension constitutes a distortion of the freedom of                                   (98/C 209/51)
     establishment.
                                                                   Reference has been made to the Court of Justice of the
Ð    Infringement of the second sentence of Article 57(2)          European Communities by judgment of the Cour d'Appel
     of the EC Treaty: That sentence imposes the                   de Bruxelles (Court of Appeal, Brussels) of 30 April 1998,
     requirement of unanimity where harmonisation                  received at the Court Registry on 11 May 1998, in the
     amends the existing principles laid down by law               case of Sebago Inc. and S.A. Ancienne Maison Dubois et
     governing training and the conditions of access for           Fils against S.A. G-B Unic, for a preliminary ruling on the
     natural persons to the professions. The contested             following questions:
     directive seriously affects such principles in the great
     majority of Member States. It removes the need for a          Is Article 7(1) of the First Council Directive 89/104/EEC
     migrant lawyer to be qualified, even minimally, in the        of 21 December 1988 to approximate the laws of the
     purely national law of the host State and introduces          Member States relating to trade marks (OJ L 40 of
     an inordinate derogation from a legislative principle         11.2.1989, p. 1) to be interpreted as meaning that the
     fundamental to the legal profession, common to all            right conferred by the trade mark entitles its proprietor to
     the Member States, whereby the profession is to be            oppose the use of his trade mark in relation to authentic
     one in which access is reserved for persons duly              goods which have not been put on the market in the
     qualified in national law, or the equivalence of whose        European Economic Community (extended to Norway,
     qualifications has been recognised, with, where               Iceland and Liechtenstein by virtue of the Agreement of
     appropriate, proof of the acquisition of missing              2 May 1992 establishing the European Economic Area) by
     knowledge by means of the test provided for by                the proprietor or with his consent, where:
     Council Directive 89/48/EEC (2).
                                                                   Ð the goods bearing the trade mark come directly from a
     Moreover, the contested directive distorts the                    country outside the European Community or the
     conditions for access of natural persons, in that it:             European Economic Area,
     Ð authorises full practice of such persons in an              Ð the goods bearing the trade mark come from a
         established capacity under the home-country                   Member State of the European Community or the
         professional    title, which      was     previously          European Economic Area in which they are in transit
         impossible in the great majority of Member                    without the consent of the proprietor of the trade
         States;                                                       mark or his representative,
 ---pagebreak--- C 209/26             EN                 Official Journal of the European Communities                                    4.7.98
Ð if the goods were acquired in a Member State of the                  principles contained in Article 4 of Directive 91/156/
    European Community or of the European Economic                     EEC apply and to what extent?
    Area in which they were put on sale for the first time
    without the consent of the proprietor of the trade
    mark or his representative,                                    Ð Does the activity carried on by the person under
                                                                       investigation, namely the storage of 160 kg of lead
                                                                       batteries for more than one month, without any
Ð or where goods bearing the trade mark which are                      notification to the supervisory authorities, constitute
    identical to the authentic goods bearing the same trade            temporary storage under the terms of the directive?
    mark but are imported in parallel either directly or
    indirectly from countries outside the European                 (1) OJ L 78, 26.3.1991, p. 32.
    Community or the European Economic Area are, or
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the
    trade mark or with his consent,
Ð or where goods bearing the trade mark which are                  Reference for a preliminary ruling from the         Pretura
    similar to the authentic goods bearing the same trade          Circondariale, Udine (Ufficio del Giudice per le   indagini
    mark but are imported in parallel either directly or           preliminari), by order of that court of 20 April   1998 in
    indirectly from countries outside the European                 the criminal proceedings pending before it          against
    Community or the European Economic Area are, or                                      Francesca Bizzaro
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the                                   (Case C-177/98)
    trade mark or with his consent.                                                         (98/C 209/53)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Pretura
                                                                   Circondariale (District Magistrates Court), Udine, by
                                                                   order of that court of 20 April 1998, which was received
Reference for a preliminary ruling from the Pretura
                                                                   at the Court Registry on 11 May 1998, for a preliminary
Circondariale, Udine (Ufficio del Giudice per le indagini
                                                                   ruling in the criminal proceedings pending before it
preliminari), by order of that court of 20 April 1998 in
                                                                   against Francesca Bizzaro, on the following questions:
the criminal proceedings pending before it against Paolo
                            Lirussi
                      (Case C-175/98)                              Ð What is the difference (if any) between temporary
                                                                       storage and storage of waste pending further
                        (98/C 209/52)                                  operations (or storage of materials) within the
                                                                       producer's premises, and what are the criteria for
                                                                       determining in a given case which of those forms of
Reference has been made to the Court of Justice of the                 storage is involved?
European Communities by an order of the Pretura
Circondariale (District Magistrates Court), Udine, by
order of that court of 20 April 1998, which was received           Ð Is temporary storage excluded from waste
at the Court Registry on 11 May 1998, for a preliminary                management' in the sense contemplated in Article 1(d)
ruling in the criminal proceedings pending before it                   of Directive 91/156/EEC (1) and from all the
against Paolo Lirussi, on the following questions:                     obligations in relation thereto, including the
                                                                       notification of temporary storage to the supervisory
                                                                       authorities?
Ð What is the difference (if any) between temporary
    storage and storage of waste pending further
    operations (or storage of materials) within the                Ð Is temporary storage subject to supervision and, if so,
    producer's premises, and what are the criteria for                 to what type of measures; in that regard do the
    determining in a given case which of those forms of                principles contained in Article 4 of Directive 91/156/
    storage is involved?                                               EEC apply and to what extent?
Ð Is temporary storage excluded from waste                         Ð Does the activity carried on by the person under
    management' in the sense contemplated in Article 1(d)             investigation, namely the storage of 87.5 kg of sludge
    of Directive 91/156/EEC (1) and from all the                       containing halogenated solvents for more than two
    obligations in relation thereto, including the                     months, constitute temporary storage under the terms
    notification of temporary storage to the supervisory               of the directive?
    authorities?
                                                                   (1) OJ L 78, 26.3.1991, p. 32.
Ð Is temporary storage subject to supervision and, if so,
    to what type of measures; in that regard do the