CELEX: C1998/007/06
Language: en
Date: 1998-01-10 00:00:00
Title: JUDGMENT OF THE COURT of 11 November 1997 in Joined Cases C-359/95 P and C-379/95 P: Commission of the European Communities and French Republic v. Ladbroke Racing Ltd (Competition - Articles 85, 86 and 90 of the EC Treaty - Rejection of a complaint concerning the conduct of an undertaking without a prior examination of the compatibility of national legislation affecting such conduct)

10. 1. 98             EN                  Official Journal of the European Communities                                     C 7/3
               JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                    of 11 November 1997                                                   of 11 November 1997
in Case C-349/95 (reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Frits Loendersloot,                  in Joined Cases C-359/95 P and C-379/95 P: Commission
trading as F. Loendersloot Internationale Expeditie v.               of the European Communities and French Republic v.
         George Ballantine & Son Ltd and Others (1)                                      Ladbroke Racing Ltd (1)
(Article 36 of the EC Treaty Ð Trade mark rights Ð                   (Competition Ð Articles 85, 86 and 90 of the EC Treaty
                Relabelling of whisky bottles)                       Ð Rejection of a complaint concerning the conduct of
                         (98/C 7/05)                                 an undertaking without a prior examination of the
                                                                     compatibility of national legislation affecting such
                                                                                                 conduct)
                (Language of the case: Dutch)
                                                                                               (98/C 7/06)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                                     (Language of the case: English)
In Case C-349/95: reference to the Court under Article 177
of the EC Treaty from the Hoge Raad der Nederlanden
(Supreme Court of the Netherlands) for a preliminary
ruling in the proceedings pending before that court
between Frits Loendersloot, trading as F. Loendersloot               In Joined Cases C-359/95 P and C-379/95 P: Commission
                                                                     of the European Communities (Agents: Francisco Enrique
Internationale Expeditie, and George Ballantine & Son
Ltd and Others Ð on the interpretation of Article 36 of              GonzaÂlez Díaz and Richard Lyal) and French Republic
                                                                     (Jean-FrancËois Dobelle, assisted by Catherine de Salins) Ð
the EC Treaty Ð the Court, composed of: G. C.
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              two appeals against the judgment of the Court of First
H. Ragnemalm, M. Wathelet (Presidents of Chambers),                  Instance (First Chamber, Extended Composition) of
                                                                     18 September 1995 in Case T-548/93 Ladbroke Racing v.
J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,
D. A. O. Edward, G. Hirsch, P. Jann and L. Sevón,                    Commission [1995] ECR II-2565, seeking to have that
Judges; F. G. Jacobs, Advocate-General; D. Louterman-                judgment set aside, the other party to the proceedings
                                                                     being Ladbroke Racing Ltd, a company incorporated
Hubeau, Principal Administrator, for the Registrar, has
given a judgment on 11 November 1997, in which it has                under English law, represented by Jeremy Lever QC and
                                                                     Christopher Vajda, Barrister, instructed by Stephen Kon,
ruled:
                                                                     Solicitor, with an address for service in Luxembourg at the
                                                                     Chambers of Winandy & Err, 60 Avenue Gaston Diderich
Article 36 of the EC Treaty must be interpreted as                   Ð the Court, composed of: G. C. Rodríguez Iglesias,
meaning that the owner of trade mark rights may, even if             President, C. Gulmann, H. Ragnemalm and R. Schintgen
that constitutes a barrier to intra-Community trade, rely            (Presidents of Chambers), G. F. Mancini, P. J. G. Kapteyn
on those rights to prevent a third party from removing               (Rapporteur), J. L. Murray, D. A. O. Edward, J.-P.
and then reaffixing or replacing labels bearing the mark             Puissochet, G. Hirsch and P. Jann, Judges; G. Cosmas,
which the owner has himself affixed to products he has               Advocate-General; H. von Holstein, Deputy Registrar, for
put on the Community market, unless:                                 the Registrar, has given a judgment on 11 November
                                                                     1997, in which it:
Ð it is established that the use of the trade mark rights
     by the owner to oppose the marketing of the
     relabelled products under that trade mark would
     contribute to artificial partitioning of the markets            1. sets aside the judgment of the Court of First Instance
     between Member States,                                              of 18 September 1995 in Case T-548/93 Ladbroke
                                                                         Racing v. Commission;
Ð it is shown that the relabelling cannot affect the
     original condition of the product,
                                                                     2. refers the case back to the Court of First Instance;
Ð the presentation of the relabelled product is not such
     as to be liable to damage the reputation of the trade
     mark and its owner, and
                                                                     3. reserves costs.
Ð the person who relabels the products informs the trade
     mark owner of the relabelling before the relabelled
     products are put on sale.                                       (1) OJ C 31, 3. 2. 1996.
(1) OJ C 351, 30. 12. 1995.