CELEX: C1997/166/07
Language: en
Date: 1997-05-31 00:00:00
Title: References for a preliminary ruling from the Landgericht München I by orders of that court of 8 January 1997 in the cases of WSC Windsurfing Chiemsee Produktions- und Vertriebs GmbH v. Boots- und Segelzubehör Walter Huber and WSC Windsurfing Chiemsee Produktions- und Vertriebs GmbH v. Franz Attenberger (Cases C-108/97 and C-109/97)

No C 166/4           | EN 1                  Official Journal of the European Communities                                       31 . 5 . 97
which had itself prolonged the validity of the Community                References for a preliminary ruling from the Landgericht
framework on State aid to the motor vehicle industry —                  München I by orders of that court of 8 January 1997 in
the Court ( Sixth Chamber), composed of: G. E Mancini,                  the cases of WSC Windsurfing Chiemsee Produktions- und
President of the Chamber, C. N. Kakouris, P. J. G.                      Vertriebs GmbH v. Boots- und Segelzubehör Walter Huber
Kapteyn, G. Hirsch and R. Schintgen ( Rapporteur),                      and WSC Windsurfing Chiemsee Produktions- und Ver­
Judges; C. O. Lenz, Advocate-General; D. Louterman-                                     triebs GmbH v. Franz Attenberger
Hubeau, Principal Administrator, for the Registrar, has                                   ( Cases C-108/97 and C-109/97)
given a judgment on 15 April 1997, in which it:
                                                                                                     ( 97/C 166/07 )
1 . annuls the Commission 's decision, notified by letter of
      6 July 1995, to prolong, with retroactive effect from             Reference has been made to the Court of Justice of the
      1 January 1995, the Commission decision of                        European Communities by two orders of the Landgericht
      23 December 1992 which had itself prolonged the                   München I ( Munich I Regional Court) of 8 January 1997,
      validity of the Community framework on State aid to               which were received at the Court Registry on 14 March
      the motor vehicle industry;                                       1997, for a preliminary ruling in the cases of WSC
                                                                        Windsurfing Chiemsee Produktions- und Vertriebs GmbH
                                                                        v. Boots- und Segelzubehör Walter Huber and WSC
2. orders the Commission to pay the costs.                              Windsurfing Chiemsee Produktions- und Vertriebs GmbH
                                                                        v. Franz Attenberger on the following questions:
0 ) OJ No C 299 , 11 . 11 . 1995 .
                                                                        1 . Questions on Article 3 ( 1 ) (c ) ('):
                                                                             Is Article 3 ( 1 ) (c ) to be understood as meaning that it
                                                                             suffices if there is a possibility of the designation being
                                                                             used to indicate the geographical origin, or must that
                   ORDER OF THE COURT                                        possibility be likely in the particular case ( in the sense
                          of 4 March 1997                                    that other such undertakings already use that word to
                                                                             designate the geographical origin of their goods of
in Case C-46/96: Federal Republic of Germany v.                              similar type, or at least that there are specific reasons
         Commission of the European Communities ( J )                        to believe that that may be expected in the foreseeable
                   (No need to give a decision)                              future ), or must there even be a need to use that
                                                                             designation to indicate the geographical origin of the
                             ( 97/C 166/06 )                                 goods in question, or must there in addition also be a
                                                                             qualified need for the use of that indication of origin,
                (Language of the case: German)                               for instance because goods of that kind, produced in
                                                                             that region, enjoy a special reputation ?
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)                          Is it of significance for a broader or narrower
                                                                             interpretation of Article 3 ( 1 ) (c ) with respect to
                                                                             geographical indications of origin that the effects of
 In Case C-46/96 : Federal Republic of Germany ( Agent:                      the mark are restricted under Article 6 ( 1 ) ( b )?
 Ernst Röder) against Commission of the European
 Communities ( Agents: Anders Christian Jessen and Paul F.                   Do geographical indications of origin under Article 3
 Nemitz, with Hans-Jürgen Rabe and Georg M. Berrisch )                        ( 1 ) (c ) cover only those which relate to the
 — application for annulment of Decision C(95 ) 3319 final                   manufacture of the goods at that place, or does trade
 of the Commission of 29 November 1995 concerning                            in those goods at that place or from that place suffice,
 fiscal aid in the field of depreciation favouring German                    or in the case of the production of textiles does it
 undertakings — the Court, composed of G. C. Rodriguez                       suffice if they are designed in the region designated
 Iglesias, President, G. F. Mancini, J. C. Moitinho de                        but then manufactured under contract elsewhere ?
 Almeida, J. L. Murray and L. Sevón ( Presidents of
 Chambers ), J. -P. Puissochet, G. Hirsch, P. Jann
 ( Rapporteur), H. Ragnemalm, M. Wathelet and R.                         2 . Questions on the first sentence of Article 3 (3):
 Schintgen, Judges; Advocate-General, D. Ruiz-Jarabo
 Colomer; R. Grass, Registrar, made an order on 4 March                      What requirements follow from this provision for the
 1997, the operative part of which is as follows :                            registrability of a descriptive designation under
                                                                              Article 3 ( 1 ) ( c )?
 1 . There is no need to give a decision.
                                                                              In particular, are the requirements the same in all
                                                                              cases, or are the requirements different according to
 2 . The Commission shall pay the costs.                                      the degree of the need to leave free ?
  (') OJ No C 108 , 13 . 4 . 1996 .                                           Is in particular the view hitherto taken in the German
                                                                              case-law, namely that in the case of descriptive
                                                                               designations which need to be left free, trade
 ---pagebreak--- 31 . 5 . 97               EN                 Official Journal of the European Communities                                   No C 166/5
      acceptance in more than 50% of the trade circles                  Such a specific prohibition is contrary to Article 4 of
      concerned is required and is to be demonstrated,                  Directive    90/396/EEC       inasmuch     as it constitutes an
      compatible with that provision ?                                  obstacle to the putting into service of appliances to which
                                                                        the directive applies and which conform to the essential
                                                                        requirements provided for therein.
      Do requirements follow from this provision as to the
      manner in which descriptive character acquired by use
      is to be ascertained ?                                            The argument that Article 5 ( 10 ) of DPR 412/93 is
                                                                        compatible with Directive 90/396/EEC on account of the
C ) First Council Directive of 21 December 1988 to approximate          safety requirements on which it is based is unfounded .
    the laws of the Member States relating to trade marks ( 89/         Indeed, the essential requirements laid down by the
     104/EEC ) ( OJ No L 40, 1989, p. 1 ).                              directive in respect of the installation and use of
                                                                        appliances burning gaseous fuels — including of the ' open'
                                                                        type — are exhaustive in that they conform to all the
                                                                        relevant safety requirements and are mandatory in nature .
                                                                        In the present case, the national authority is no longer
                                                                        able to maintain in force nor to adopt national provisions
                                                                        which require compliance with additional requirements,
Action brought on 18 March 1997 by the Commission of                    otherwise the achievement and the functioning of the
   the European Communities against the Italian Republic                internal market would be unlawfully hindered.
                            Case C-l 12/97
                             ( 97/C 166/08 )                            The argument that Article 5 ( 10 ) of DPR 412/93 should
                                                                        be regarded as a lawful derogation under Article 36 and
                                                                        100a (4 ), or Article 129a of the EC Treaty from the
An action against the Italian Republic was brought before               principle of the free movement of goods is also
the Court of Justice of the European Communities on                     unfounded .
18 March 1997 by the Commission of the European
Communities, represented by Paolo Stancanelli and Hans
                                                                        (') OJ No L 196 , 26 . 7. 1990 , p . 15 .
Stovlbaek, of its Legal Service, acting as Agents, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, Wagner Centre, Kirchberg.
The applicant claims that the Court should :
                                                                        Action brought on 19 March 1997 by Commission of the
— declare that, by establishing and maintaining a system                     European Communities against Kingdom of Spain
      which requires the installation in inhabited areas only                                    (Case C-l 14/97)
      of 'shielded' heaters, thus impliedly prohibiting the
      installation of heaters of any other type which comply                                       ( 97/C 166/09 )
      with Directive 90/396/EEC ( 1 ), the Italian Republic has
       failed to fulfil its obligations under Community law,
                                                                         An action against the Kingdom of Spain was brought
                                                                         before the Court of Justice of the European Communities
— order the Italian Republic to pay the costs.                           on 17 March 1997 by the Commission of the European
                                                                         Communities, represented by A. Caeiro and F. Castillo de
                                                                         la Torre, acting as Agents, with an address for service in
 Pleas in law and main arguments adduced in support:                     Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                         Wagner Centre, Kirchberg.
Article 5 ( 10 ) of Decreto del Presidente della Repubblica
 ( Decree of the President of the Republic ) of 26 August                The applicant claims that the Court should:
 1993 (hereinafter DPR 412/93 ) provides that in cases of
 new installations or restructuring of heating systems which
 involve the installation of individual heaters, except in               — declare that, by maintaining in force Articles 7, 8 and
 cases of mere replacement, heaters insulated from the                       10 of Law No 23/1992 of 30 July 1992 0 ), in so far
 inhabited area may be used or, where installation is                        as those provisions make the grant of authorization to
 external or in suitable industrial premises, appliances of                  carry on private security activities in the case of
 any type may be fitted .                                                    ' security companies' subject to the requirement of
                                                                             being constituted in Spain and the requirement that
                                                                             their directors and managers should reside in Spain
 Although Article 5 ( 10 ) of DPR 412/93 does not contain a                  and the requirement that the 'security staff should
 prohibition on the marketing of non-insulated ('open')                      possess Spanish nationality, the Kingdom of Spain has
 heaters or a general prohibition on their installation, it is               failed to fulfil its obligations under the EC Treaty, in
 none the less true that that provision does prohibit                        particular Articles 48 , 52 and 59,
 specifically, albeit impliedly, the fitting of such heaters in
 inhabited areas when installing anew or restructuring
 heating systems.                                                        — order the defendant to pay the costs.