CELEX: C1997/318/15
Language: en
Date: 1997-10-18 00:00:00
Title: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien by order of that court of 13 August 1997 in the case of Klaus Konle v. Republic of Austria (Case C-302/97)

18 . 10 . 97             EN                  Official Journal of the European Communities                                      C 318/9
Reference for a preliminary ruling from the Landesgericht                     federal structure lays down that in the case of
für Zivilrechtssachen Wien by order of that court of                          infringements imputable to a part of the State, the
13 August 1997 in the case of Klaus Konle v. Republic of                      injured party may claim only against the part State,
                                Austria                                       not the State as a whole ?
                          ( Case C-302/97)
                            ( 97/C 318/15 )
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling from the Bundes­
European Communities by an order of the Landesgericht                   gerichtshof by order of that court of 26 June 1997 in
für Zivilrechtssachen Wien ( Regional Civil Court, Vienna )             the case of Verbraucherschutzverein e.V. v. Sektkellerei
of 13 August 1997, which was received at the Court                                         G. C. Kessler GmbH & Co.
Registry on 22 August 1997, for a preliminary ruling in                                              ( Case C-303/97
the case of Klaus Konle v. Republic of Austria on the
following questions :                                                                                  ( 97/C 318/ 16 )
1 . Does it follow from the interpretation of Articles 6, 52            Reference has been made to the Court of Justice of the
     et seq. ( Part Three, Title III, Chapter 2 ) and Article 73b       European Communities by an order of the Bundesgerichts­
     et seq. ( Part Three, Title III, Chapter 4 ) of the EC             hof ( Federal Court of Justice ) of 26 June 1997, which was
     Treaty and Article 70 of the Act of Accession ( Act                received at the Court Registry on 25 August 1997, for a
     concerning the conditions of accession of [...] the                preliminary ruling in the case of Verbraucherschutz­
                                                                        verein e.V. v. Sektkellerei G. C. Kessler GmbH & Co .
     Republic of Austria [...] and the adjustments to the
     treaties on which the European Union is founded )                  on the following questions on the interpretation of
     that:                                                              Article 13 ( 2 ) ( b ) of Council Regulation ( EEC ) No 2333/
                                                                        92 of 13 July 1992 laying down general rules for the
                                                                        description and presentation of sparkling wines and
     ( a ) in that, while the Tiroler Grundverkehrsgesetz               aerated sparkling wines ('):
           ( TGVG ) 1993 was in force, the plaintiff was
           required to prove that he would not establish a              ( a ) Does it suffice for the prohibition in Article 13 ( 2 ) ( b )
           holiday residence, whereas in the case of an
                                                                              of the said Regulation to be applicable that a word in
           acquisition by an Austrian a mere declaration
                                                                              a brand name used to describe the sparkling wine ( in
           under Paragraph 10 ( 2 ) would have sufficed to
           obtain    the   consent   of  the  land    transactions
                                                                              this case 'Hochgewächs') may be confused with part
                                                                              of the description of a wine ( in this case ' Riesling-
           authority, and he was refused consent, and                         Hochgewächs') not used for constituting the cuvée of
                                                                              the sparkling wine, even if it is not the case that a
     ( b ) in that, under the TGVG 1996 , the plaintiff, even                 substantial proportion of consumers form mistaken
           before his property right is entered in the land                   impressions as to the composition of the cuvée which
           register, must — as Austrians now also must —                      influence their purchases, and there is no intent to
           undergo a consent procedure, the possibility of                    deceive on the part of the owner of the brand ?
           making an effective declaration that no holiday
           residence is being created no longer existing for            ( b ) If so, may the industrial property which the owner of
           Austrians either,                                                  the brand has acquired by reason of the traditional
                                                                              undisturbed use of his description in Germany, as a
     Community law was infringed and the plaintiff injured                    higher-ranking interest deserving protection, preclude
     in respect of a fundamental freedom guaranteed by                        the application of the prohibition of descriptions in
     provisions of Community law ?                                            Article 13 ( 2 ) ( b ) of the said Regulation ?
                                                                        O OJ L 231 , 13 . 8 . 1992, p . 9 .
2 . If so, is it for the Court of Justice, in proceedings
     under Article 177 of the EC Treaty, also to decide
     whether a breach of Community law is 'sufficiently
     serious' ( as the phrase is used, for example, in the
     judgment in Joined Cases C-46/93 and C-48/93
     Brasserie du Pêcheur and Factortame )?                             Appeal brought on 26 August 1997 by Fernando . Carbajo
                                                                        Ferrero against the judgment delivered on 12 June 1997
                                                                        by the First Chamber of the Court of First Instance of the
3 . If Questions 1 and 2 are answered in the affirmative,
                                                                        European Communities in Case T-237/95 between
     is the breach ' sufficiently serious'?
                                                                           Fernando Carbajo Ferrero and the European Parliament
                                                                                                   ( Case C-304/97 P)
4 . Is the principle of the liability of Member States for
                                                                                                        ( 97/C 318/ 17 )
     the damage caused to an individual by breaches
     of Community law complied with, on a proper
     interpretation of Article 5 of the EC Treaty, if the               An appeal against the judgment delivered on 12 June 1997
     national law on liability of a Member State with a                 by the First Chamber of the Court of First Instance of