CELEX: C2001/212/24
Language: en
Date: 2001-07-28 00:00:00
Title: Case C-209/01: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 21 February 2001 in the case of Theodor Schilling and Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd

C 212/14               EN                      Official Journal of the European Communities                                     28.7.2001
—     Order the Kingdom of the Netherlands to pay the costs.                   (b) the third party has no defence to infringement by
                                                                                     virtue of Article 6(1) of the Council Directive of the
                                                                                     21st December 1988 to approximate the laws of
Pleas in law and main arguments                                                      the Member States relating to trade marks
                                                                                     (89/104/EEC) (1);
The Commission submits that Netherlands has not correctly
implemented the following provisions of the directive into                     does the third party have a defence to infringement on
Netherlands law:                                                               the ground that the use complained of does not indicate
                                                                               trade origin (i.e. a connection in the course of trade
—     Article 8(2) (use of anaesthesia in the case of serious                  between the goods and the trade mark proprietor)?
      injury which may cause severe pain): A draft amendment
      to the ‘Dierproevenbesluit’ (animal experiments order) for
                                                                          2.   If so, is the fact that the use in question would be
      the implementation of Article 8(2)(b), last sentence,
                                                                               perceived as a badge of support, loyalty or affiliation to
      of the directive, was, according to the Netherlands
                                                                               the trade mark proprietor a sufficient connection?
      Government, recently sent for the opinion of the Raad
      van State.
—     Article 11 (release of animals): The Commission submits
      that Article 10(a), second paragraph of the Wet op de               (1) OJ L 40, 11.2.1989, p. 1.
      Dierproeven (law on animal experiments) has a general
      scope and does not concern specifically the release of
      animals.
—     Article 18(1) (identification marking of dogs, cats and
      primates): There is no provision in Netherlands law to
      the effect that before they are weaned they must be provided
      with an individual identification mark in the least painful
      manner possible.
—     Article 22(1) (mutual recognition of results of animal
      experiments): The Commission submits that this pro-                 Reference for a preliminary ruling from the Bundesfin-
      vision must be implemented in national law by means of              anzhof by order of that court of 21 February 2001 in the
      a statutory provision with binding force.                           case of Theodor Schilling and Angelika Fleck-Schilling v
                                                                                             Finanzamt Nürnberg-Süd
(1) OJ 1987, L 117, p. 31.
                                                                                                  (Case C-209/01)
                                                                                                  (2001/C 212/24)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by an order of the Bundesfinanzhof
Reference for a preliminary ruling by the High Court of                   (Federal Finance Court) of 21 February 2001, which was
Justice (England & Wales), Chancery Division, by order                    received at the Court Registry on 21 May 2001, for a
of that court of 4 May 2001, in the case of Arsenal                       preliminary ruling in the case of Theodor Schilling and
           Football Club plc against Matthew Reed                         Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd on the
                                                                          following questions:
                          (Case C-206/01)
                                                                          1.   Is it contrary to the first paragraph of Article 14 of the
                                                                               Protocol on the privileges and immunities of the Euro-
                         (2001/C 212/23)                                       pean Communities of 8 April 1965 (BGBl II 1965, 1482,
                                                                               1488) if German nationals who work in Luxembourg as
Reference has been made to the Court of Justice of the                         officials of the European Community and live there may
European Communities by an order of the High Court of                          not, in the context of assessment to German income tax,
Justice (England & Wales), Chancery Division, of 4 May 2001,                   deduct expenditure in respect of a household help
which was received at the Court Registry on 18 May 2001, for                   employed in Luxembourg under Paragraph 10(1)(8) of
a preliminary ruling in the case of Arsenal Football Club plc                  the Einkommensteuergesetz (Law on income tax) because
against Matthew Reed, on the following questions:                              the contributions to the statutory pension insurance
                                                                               scheme for the household help were not paid to the
1.    Where a trade mark is validly registered and
                                                                               German pension insurance scheme?
      (a)   a third party uses in the course of trade a sign
            identical with that trade mark in relation to goods           2.   If Question 1 is answered in the negative: Is Article 48(4)
            which are identical with those for whom the trade-                 of the EC Treaty to be interpreted as meaning that an EC
            mark is registered; and                                            official may not rely on Article 48 of the EC Treaty?
 ---pagebreak--- 28.7.2001              EN                     Official Journal of the European Communities                                        C 212/15
3.    If Question 2 is answered in the negative: Is it contrary to       their transposition. That time-limit expired on 15 June 1999
      Article 48 of the EC Treaty if an EC official living in            without the Italian Republic having brought into force the
      Luxembourg who is deemed to be resident in Germany                 necessary provisions in order to comply with the directive
      and pays contributions in Luxembourg to the statutory              referred to in the Commission’s application.
      pension insurance scheme for a household help is not
      entitled to deduct special expenditure under Para-
      graph 10(1)(8) of the Einkommensteuergesetz?                       (1) OJ L 71, 10.3.1998, p. 1.
4.    If Question 3 is answered in the affirmative: May the
      principles developed in the judgment in Case C-112/91
      Werner [1993] ECR I-429 be applied to the present case?
                                                                         Action brought on 23 May 2001 by Commission of the
                                                                         European Communities against Council of the European
                                                                                                       Union
                                                                                                 (Case C-211/01)
Action brought on 22 May 2001 by the Commission of                                               (2001/C 212/26)
 the European Communities against the Italian Republic
                                                                         An action against Council of the European Union was brought
                                                                         before the Court of Justice of the European Communities on
                         (Case C-210/01)                                 23 May 2001 by the Commission of the European Communi-
                                                                         ties, represented by M. Wolfcarius, acting as Agent, with an
                                                                         address for service in Luxembourg.
                         (2001/C 212/25)
                                                                         The applicant claims that the Court should:
An action against the Italian Republic was brought before the            —     annul the Council decisions of 19 March 2001 concern-
Court of Justice of the European Communities on 22 May                         ing the conclusion of the agreement between the Euro-
2001 by the Commission of the European Communities,                            pean Community and Bulgaria and Hungary (1) on trans-
represented by Hans Støvlbæk and Roberto Amorosi, acting as                    port inasmuch as they are based on Article 93 EC whereas
Agents.                                                                        the necessary and sufficient legal basis is Article 71 EC;
                                                                         —     maintain the effects of those agreements until the Council
The applicant claims that the Court should:                                    adopts new measures;
                                                                         —     order the Council to pay the costs.
—     Declare that, by failing to adopt and bring into force
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with Com-
      mission Directive 98/11/EC of 27 January 1998                      Pleas in law and main arguments
      implementing Council Directive 92/75/EEC with regard
      to energy labelling of household lamps (1) or, in any              The proper legal basis for the adoption of the transport
      event, by failing to forward them to the Commission, the           agreements referred to is Article 71 EC, the only basis required
      Italian Republic failed to fulfil its obligations under that       by the primary objective of the said instruments. The fiscal
      directive; and                                                     element must form an integral part of those agreements
                                                                         because it is involved in the objective of implementing the
—     Order the Italian Republic to pay the costs.                       common transport policy. Its role is to ensure that the system
                                                                         of reciprocal authorisations, created under the agreements, is
                                                                         run in a non-discriminatory manner.
Pleas in law and main arguments                                          The concurrent use of Article 93 EC as a legal basis is precluded
                                                                         by the fact that Article 71 requires only qualified majority
                                                                         voting in the Council, whereas Article 93 requires unanimity.
Under Article 249 of the EC Treaty, according to which a                 Admittedly, the problem regarding consultation of the Euro-
directive is to be binding, as to the result to be achieved, upon        pean Parliament has not arisen in practice in light of
each Member State to which it is addressed, Member States are            Article 300(3) which governs the conclusion of international
required to observe the time-limits laid down in directives for          agreements. Nevertheless the possibility remains since the