CELEX: C2003/055/27
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-15/03: Action brought on 14 January 2003 by the Commission of the European Communities against the Republic of Austria

8.3.2003               EN                      Official Journal of the European Union                                            C 55/15
Action brought on 10 January 2003 by the Commission                    products for human use and their inclusion in the scope of
of the European Communities against the Grand-Duchy                    national health insurance systems, under which a decision of
                         of Luxembourg                                 the competent national authority refusing permission to
                                                                       market a medicinal product at the price proposed by the
                           (Case C-9/03)                               applicant must contain a statement of reasons ‘based on
                                                                       objective and verifiable criteria’, mean that the competent
                         (2003/C 55/25)                                authority under domestic Belgian legislation must lay down in
                                                                       advance by way of a generally applicable provision the criteria
                                                                       to be taken into consideration by the authority ruling on the
An action against the Grand-Duchy of Luxembourg was                    individual application, or is the decision-making authority
brought before the Court of Justice of the European Communi-           permitted to state in each individual decision the objective and
                                                                       verifiable criteria on which it based its refusal, in that case, to
ties on 10 January 2003 by the Commission of the European
Communities, represented by D. Martin and M. França, acting            grant the application, or is it sufficient for the authority to
                                                                       provide a formal statement of the reasons for its individual
as Agents, with an address for service in Luxembourg.
                                                                       decision by citing actual evidence from the file and for the
                                                                       courts then to review whether that evidence constitutes an
The Commission of the European Communities claims that                 objective and verifiable criterion?
the Court should:
—     Declare that, by failing to bring into force the laws,
                                                                       (1 ) OJ L 40 of 11.02.1989, p. 8.
      regulations and administrative provisions necessary to
      comply with Directive 98/27/EC of the European Parlia-
      ment and of the Council of 19 May 1998 on injunctions
      for the protection of consumers’ interests (1), the Grand-
      Duchy of Luxembourg has failed to fulfil its obligations
      under that directive;
—     Order the Grand-Duchy of Luxembourg to pay the costs.
                                                                       Action brought on 14 January 2003 by the Commission
Pleas in law and main arguments                                        of the European Communities against the Republic of
                                                                                                      Austria
The period for transposition laid down in Article 8 of the
directive expired on 1 January 2001.
                                                                                                 (Case C-15/03)
( 1) OJ 1998 L 166, p. 51.
                                                                                                (2003/C 55/27)
Reference for a preliminary ruling by the Raad van                     An action against the Republic of Austria was brought
State, Afdeling Administratie by order of that Court of                before the Court of Justice of the European Communities
9 December 2002 in the case of NV Boss Pharma against                  on 14 January 2003 by the Commission of the European
Belgian State, represented by the Minister for Economic                Communities, represented by Dr Jürgen Grunwald, legal
                              Affairs                                  adviser of the European Commission and Minas Konstantinidis,
                                                                       of its legal service, with an address for service at the office of
                                                                       Luis Escobar Guerrero, of the Commission’s legal service,
                          (Case C-11/03)
                                                                       Wagner Centre C 254, Luxembourg-Kirchberg.
                         (2003/C 55/26)
                                                                       The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by order of the Raad van State,                   1.    Declare that the Republic of Austria has infringed its
Afdeling Administratie (Council of State, Administrative Div-                obligations under Article 3(1) of Council Directive 75/
ision) of 9 December 2002, received at the Court Registry on                 439/EEC of 16 June 1975 on the disposal of waste oils (1)
13 January 2003, for a preliminary ruling in the case of NV                  by failing to take the legal and practical measures
Boss Pharma against Belgian State, represented by the Minister               necessary to ensure that priority is given to the treatment
for Economic Affairs on the following question:                              by way of regeneration of waste oils, so long as that is
                                                                             not precluded by technical, financial and organisational
                                                                             constraints.
On a proper interpretation, does Article 2(2) of Council
Directive 89/105/EEC (1) of 21 December 1988 relating to the
transparency of measures regulating the prices of medicinal            2.    Order the Republic of Austria to pay the costs.
 ---pagebreak--- C 55/16                EN                         Official Journal of the European Union                                         8.3.2003
Pleas in law and main arguments                                                 (b) has offered them for sale in the trademark owner’s
                                                                                      own shops or those of a related company within the
                                                                                      common market but a sale of the goods has not
The Republic of Austria neither transposed the principle of                           taken place?
priority contained in Article 3(1) of Directive 75/439/EEC
in the version contained in Directive 87/101/EEC ( 2) not
demonstrated that such priority was precluded by technical,               2.    If goods have been put on the market under one of the
financial or organisational constraints.                                        above alternatives and exhaustion of the trademark right
                                                                                thereby occurs without there having been a sale of the
                                                                                goods, can a trademark owner interrupt exhaustion by
Priority in favour of ‘regeneration’ or (in Austrian terminology)               returning the goods to a warehouse?
‘recycling’ as opposed to ‘combustion’ or (in Austrian termin-
ology) ‘energy conversion’ cannot be inferred from the Austri-            3.    Are goods to be regarded as having been put on the
an legal provisions. Rather those provisions refer to recycling                 market by virtue of the fact that they have been sold by
and energy conversion in the same context without according                     the trademark owner to another company in the internal
priority to one of the two methods of treatment over the                        market, if, upon the sale, the trademark owner imposed a
other.                                                                          restriction on the buyer under which he was not entitled
                                                                                to resell the goods in the common market?
The arguments relied on by the Republic of Austria in order to
substantiate the existence of preclusive technical, financial and         4.    Is the answer to question 3 affected if the trademark
organisational constraints, that is to say that owing to the                    owner, upon selling the consignment to which the goods
small quantity of waste oil regeneration in Austria is unecon-                  belonged, gave the buyer permission to resell a small part
omical; that for ecological reasons no clear advantages is to be                of the goods in the common market but did not specify
gained from recycling; that there is no reprocessing plant                      the individual goods to which that permission applied?
in Austria for waste oils, are in the Commission’s view
unconvincing since they merely seek to perpetuate in Austria
the existing status quo and do not indicate that any endeavours
have been made in order to meet the directive’s requirements.
( 1) OJ 1975 L 194, p. 31.
( 2) OJ 1987 L 42, p. 43.
                                                                          Reference for a preliminary ruling by the Conseil d’État,
                                                                          section d’administration (Belgium) by judgment of that
                                                                          Court of 27 December 2002 in the case of Fabricom SA
                                                                                                 against l’État belge
Reference for a preliminary ruling by the Hovrätten över                                           (Case C-21/03)
Skåne och Blekinge by order of that Court of 19 December
2002 in the case of Peak Holding AB against Axolin-
Elinor AB (formerly Handelskompaniet Factory Outlet i                                              (2003/C 55/29)
                        Löddeköpinge AB)
                          (Case C-16/03)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Conseil d’État,
                          (2003/C 55/28)
                                                                          section d’administration (Council of State, administrative sec-
                                                                          tion) (Belgium) of 27 December 2002, received at the Court
                                                                          Registry on 22 January 2003, for a preliminary ruling in the
Reference has been made to the Court of Justice of the                    case of Fabricom SA against l’État belge (Belgian State) on the
European Communities by order of the Hovrätten över Skåne                 following questions:
och Blekinge (Court of Appeal for Skåne and Blekinge) of
19 December 2002, received at the Court Registry on 15 Janu-              1.    Do Council Directive 93/38/EEC of 14 June 1993
ary 2003, for a preliminary ruling in the case of Peak Holding                  coordinating the procurement procedures of entities
AB against Axolin-Elinor AB (formerly Handelskompaniet                          operating in the water, energy, transport and telecom-
Factory Outlet i Löddeköpinge AB) on the following questions:                   munications sectors ( 1), and in particular Article 4(2)
                                                                                thereof, and Directive 98/4/EC ( 2) of 16 February 1998 of
1.    Are goods to be regarded as having been put on the                        the European Parliament and of the Council amending
      market by virtue of the fact that the trademark owner:                    Directive 93/38/EEC, in conjunction with the principle of
                                                                                proportionality, freedom of trade and industry and
      (a)   has imported them into the common market and                        respect for the law of property guaranteed in particular
            paid import duty on them, with the intention that                   by the protocol of 20 March 1992 to the Convention for
            they be sold there?                                                 the Protection of Human rights and Fundamental