CELEX: C1999/246/39
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-243/99: Reference for a preliminary ruling by the Landesgericht Korneuburg (Austria) by order of 18 June 1999 in the case of FILA Sport S.p.A. v Beijing Metals & Minerals Import & Export Corp.

28.8.1999                EN                     Official Journal of the European Communities                                       C 246/19
     If so: May Article 14c(b) of Regulation No 1408/71 in                 Action brought on 1 July 1999 by the Commission of the
     conjunction with Annex VII (implementation of Article                 European Communities against the Kingdom of Denmark
     14c(b)) be applied by analogy to the situation in this case
     of the pursuit of two different self-employed activities
     (hotelier in Austria and farmer in Germany)?                                                  (Case C-246/99)
                                                                                                   (1999/C 246/40)
( 1) OJ, English Special Edition, 1971, p. 416.
(2) OJ L 28 of 30.1.1997, p. 1.
                                                                           An action against the Kingdom of Denmark was brought
(3) OJ L 38 of 12.2.1999, p. 1.                                            before the Court of Justice of the European Communities on 1
                                                                           July 1999 by the Commission of the European Communities,
                                                                           represented by Hans Christian Støvlbæk, of its Legal Service,
                                                                           acting as Agent, with an address for service in Luxembourg at
                                                                           the office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                           Kirchberg.
                                                                           The applicant claims that the Court should:
                                                                           1. Declare that, by maintaining Paragraphs 2(1) and 1(2) of
Reference for a preliminary ruling by the Landesgericht                        Decree No 124 of 27 February 1989 on packaging for
Korneuburg (Austria) by order of 18 June 1999 in the                           beer and soft drinks, as most recently amended by Decree
case of FILA Sport S.p.A. v Beijing Metals & Minerals                          No 300 of 30 April 1997, providing that drinks covered
                      Import & Export Corp.                                    by the Decree may be marketed only in returnable
                                                                               packaging, and by maintaining Paragraph 3 of that Decree,
                                                                               which provides that the packaging of imported drinks may
                                                                               not be made of metal, the Kingdom of Denmark, further
                           (Case C-243/99)                                     to Article 226 EC (ex Article 169), has failed to fulfil
                                                                               its obligations under European Parliament and Council
                                                                               Directive 94/62/EC (1) of 20 December 1994 on packaging
                           (1999/C 246/39)                                     and packaging waste, particularly Article 18, in conjunc-
                                                                               tion with Articles 5, 7 and 9 thereof, and Articles 28 and
                                                                               30 EC (ex Articles 30 and 36);
Reference has been made to the Court of Justice of the
European Communities by order of 18 June 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)                  2. Order the Kingdom of Denmark to pay the costs of these
(Austria), which was received at the Court Registry on 28 June                 proceedings.
1999, for a preliminary ruling in the case of FILA Sport S.p.A.
v Beijing Metals & Minerals Import & Export Corp. on the
following question:
                                                                           Pleas in law and main arguments
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                      — Directive 92/64/EC provides that Member States, on the
down measures to prohibit the release for free circulation,                    one hand, cannot impede the placing on the market of
                                                                               their territory of packaging which satisfies the rules of the
export, re-export or entry for a suspensive procedure of
                                                                               Directive (Article 18) and, on the other, may allow
counterfeit and pirated goods (1) also applicable to situations
                                                                               packaging to be placed on the market only if it complies
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European                    with the essential requirements of the Directive (Article
Community, temporarily detained by customs authorities in a                    9(1)). The Directive thus establishes full harmonisation of
                                                                               Member States’ national rules on packaging and packaging
Member State on the basis of that regulation, at the request of
                                                                               waste.
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
                                                                               The Directive does not contain provisions authorising
                                                                               Member States to lay down more stringent rules. It follows
                                                                               that Member States cannot maintain in force national
                                                                               requirements which diverge from those laid down in the
(1) OJ 1994 L 341 of 30.12.1994, p. 8.                                         Directive. Since the Directive establishes full harmonisation
                                                                               of the rules on packaging, inter alia with a view to
                                                                               preventing competition from being distorted, a Member
                                                                               State cannot apply rules on the packaging to be used for
                                                                               domestic drinks which differ from those which may be
                                                                               applied to packaging for imported drinks.