CELEX: C1999/299/14
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-302/99 P: Appeal brought on 10 August 1999 by the Commission of the European Communities against the judgment delivered on 3 June 1999 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-17/96 between Télévision Française 1 SA (TF1) and the Commission of the European Communities supported by the French Republic

C 299/14                EN                   Official Journal of the European Communities                                    16.10.1999
     (ii) a substantial proportion of the relevant trace and            — declare TF1’s action inadmissible in so far as it is directed
          public believe that goods of that shape come from the              against the Commission’s failure to act pursuant to Article
          trade mark proprietor, absent a statement to the                   90 of the EC Treaty;
          contrary?
                                                                        — order TF1 to pay the costs of the proceedings before the
6. Does the exclusive right granted by Article 5(1 ) extend to               Court of Justice and give a new ruling on the costs of the
     enable the proprietor to prevent third parties using ident-             proceedings before the Court of First Instance, limiting the
     ical or similar signs in circumstances where that use was               order against the Commission so that it is commensurate
     not such as to indicate origin or is it limited so as to                with the outcome of the present appeal.
     prevent only use which wholly or in part does indicate
     origin?
                                                                        Pleas in law and main arguments
7. Is use of an allegedly infringing shape of goods, which is
     and would be seen as an indication as to the kind of goods
     or the intended purpose thereof, nonetheless such as to            The Court of First Instance erred in its interpretation of Article
     indicate origin if a substantial proportion of the relevant        90 of the EC Treaty (now Article 86 EC): It was wrong of the
     trade and public believe that goods of the shape complai-          Court to lay down, somewhat dogmatically, the principle that
     ned of come from the trade mark proprietor absent a                the purpose of the power conferred upon the Commission by
     statement to the contrary?                                         Article 90 of the EC Treaty is to protect the rights of
                                                                        individuals. On that premise, the Court of First Instance
                                                                        adopted the general view that an individual must be entitled to
(1) First Council Directive 89/104/EEC of 21 December 1988 to           bring an effective legal action against decisions which are
    approximate the laws of the Member States relating to trade         capable of adversely effecting rights recognised by the Treaties.
    marks (OJ L 40, 11.2.1989, p. 1).                                   By implying that an action for failure to act must lie, so that
                                                                        the principle of effective legal action may be observed, when
                                                                        Article 90(1) of the EC Treaty is directly effective and can
                                                                        therefore be relied on in proceedings before national courts to
                                                                        set aside State measures falling within that provision, the Court
                                                                        of First Instance misinterpreted Article 90.
Appeal brought on 10 August 1999 by the Commission
of the European Communities against the judgment deliv-
ered on 3 June 1999 by the Third Chamber, Extended
Composition, of the Court of First Instance of the Euro-
pean Communities in Case T-17/96 between Télévision                     Reference for a preliminary ruling from the Finanzgericht
Française 1 SA (TF1) and the Commission of the European                 Hamburg by order of that court of 15 July 1999 in the case
       Communities supported by the French Republic                     of OGT Fruchthandelsgesellschaft mbH v Hauptzollamt
                                                                                              Hamburg-St Annen
                         (Case C-302/99 P)
                                                                                                (Case C-307/99)
                          (1999/C 299/14)
                                                                                                (1999/C 299/15)
An appeal against the judgment delivered on 3 June 1999 by
the Third Chamber, Extended Composition, of the Court of                Reference has been made to the Court of Justice of the
First Instance of the European Communities in Case T-17/96              European Communities by an order of the Finanzgericht
between Télévision Française 1 SA (TF1) and the Commission              (Finance Court) Hamburg of 15 July 1999, which was received
of the European Communities supported by the French                     at the Court Registry on 13 August 1999, for a preliminary
Republic was brought before the Court of Justice of the                 ruling in the case of OGT Fruchthandelsgesellschaft mbH v
European Communities on 10 August 1999 by the Com-                      Hauptzollamt Hamburg-St Annen on the following question:
mission of the European Communities, represented by Giulia-
no Marenco, Principal Legal Adviser, and Klaus Wiedner, of its
Legal Service, with an address for service in Luxembourg at             Is the second subparagraph of Article 18(1) of Regulation
Wagner Centre, Kirchberg.                                               (EEC) No 404/93 (1), as amended by Regulation (EC)
                                                                        No 1637/98 (2), inapplicable on the ground of breach of
                                                                        Articles I and XIII of GATT (1994), individuals being able to
The appellant claims that the Court should:                             rely thereon in court proceedings?
— set aside the judgment delivered on 3 June 1999 by the
     Court of First Instance in Case T-17/96 Télévision Française       (1) OJ 1993 L 47, p. 1.
     1 SA ‘TF1’ v Commission, in so far as it was held that             (2) OJ 1998 L 210, p. 28.
     TF1’s action was admissible in as much as it was directed
     against the Commission’s failure to act pursuant to Article
     90 of the EC Treaty (now Article 86);