CELEX: C2001/227/17
Language: en
Date: 2001-08-11 00:00:00
Title: Case C-218/01: Reference for a preliminary ruling by the Bundespatentgericht by order of that court of 10 April 2001 in the case of Henkel KGaA

C 227/10               EN                       Official Journal of the European Communities                                      11.8.2001
6.    Prior to the entry into force of Regulation (EC)                     Reference for a preliminary ruling by the Tribunal
      No 2700/2000 (2) of the European Parliament and of                   Superior de Justicia, Castilla-La-Mancha, Sala de lo Conten-
      the Council of 16 November 2000, which amended                       cioso-Administrativo del Tribunal, Sección Segunda, by
      Article 221(3) of the Community Customs Code, was                    order of 3 April 2001 in the case of Isabel Parras Medina
      there any provision of Community law which provided                  and Adelina Paras Medina v Conséjeria de Agricultura de
      for the suspension of the period of three years for post-                  la Junta, de Comunidades de Castilla-La-Mancha
      clearance recovery as soon as an appeal is lodged?
                                                                                                    (Case C-208/01)
(1) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
    post-clearance recovery of import duties or export duties which                                 (2001/C 227/16)
    have not been required of the person liable for payment on goods
    entered for a customs procedure involving the obligation to pay        Reference has been made to the Court of Justice of the
    such duties (OJ 1979 L 197, p. 1).                                     European Communities by order of 3 April 2001 by the
(2) Regulation (EC) No 2700/2000 of the European Parliament                Tribunal Superior de Justicia, Castilla-La-Mancha, Sala de lo
    and of the Council of 16 November 2000 amending Council
                                                                           Contencioso-Administrativo del Tribunal, Sección Segunda
    Regulation (EEC) No 2913/92 establishing the Community Cus-
    toms Code (OJ 2000 L 311, p. 17).                                      (Second section of the Administrative-law Chamber of the
                                                                           High Court of Justice, Castilla-La-Mancha) which was received
                                                                           at the Court Registry on 18 May 2001, for a preliminary ruling
                                                                           in the case of Isabel Parras Medina and Adelina Paras Medina v
                                                                           Conséjeria de Agricultura de la Junta de Comunidades de
                                                                           Castilla-La-Mancha on the following questions:
                                                                           1.    Must the scope of the concept of force majeure used in
                                                                                 Article 12 of Regulation No 1294/96 of 4 July 1996 be
Reference for a preliminary ruling by the Verwaltungsge-                         altered so as to equate to that of unforeseen and
richtshof by order of that court of 25 April 2001 in the                         compelling circumstances, as described in this decision,
case of Dr Tilmann Klett against the Federal Minister for                        of such a kind that negligence as regards compliance with
                 Education, Science and Culture                                  the time-limit in question would not be regarded as such?
                                                                           2.    Are the consequences provided for in the abovemen-
                         (Case C-204/01)                                         tioned Article 12 in the nature of a sanction or a penalty
                                                                                 and, if that is the a case, does that fact contribute to the
                                                                                 need to alter the scope of the said concept of force majeure?
                         (2001/C 227/15)
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof of 25 April 2001, received at the Court Registry on
16 May 2001, for a preliminary ruling in the case of
Dr Tilmann Klett against the Federal Minister for Education,
Science and Culture on the following question:                             Reference for a preliminary ruling by the Bundespa-
                                                                           tentgericht by order of that court of 10 April 2001 in the
                                                                                                 case of Henkel KGaA
Are Article 19b of Council Directive 78/686/EEC (1) of 25 July
1978 concerning the mutual recognition of diplomas, certifi-
cates and other evidence of the formal qualifications of                                            (Case C-218/01)
practitioners of dentistry, including measures to facilitate the
effective exercise of the right of establishment and freedom to                                     (2001/C 227/17)
provide services, as amended by the Act of Accession, Official
Journal C 241 of 29 August 1994; p. 218, Article 12 EC and                 Reference has been made to the Court of Justice of the
Article 39 EC, and Article 1; read in conjunction with Article 3           European Communities by order of the Bundespatentgericht
and Article 9, of Council Directive 93/16/EEC (2) to facilitate            (Federal Patents Court) of 10 April 2001 which was received
the free movement of doctors and the mutual recognition of                 at the Court Registry on 29 May 2001, for a preliminary ruling
their diplomas, certificates and other evidence of formal                  in the case of Henkel KGaA on the following questions on the
qualifications, to be interpreted as precluding legislation under          interpretation of Article 3(1)(b), (c) and (e) of First Council
which admission to a training course in dentistry covered by               Directive 89/104/EEC(1) of 21 December 1988 to approximate
Article 19b of Directive 78/686/EEC requires a degree in                   the laws of the Member States relating to trade marks (OJ
medicine obtained at an Austrian university?                               1989 L 40, p. 1):
                                                                           1.    In the case of three-dimensional trade marks which
(1) OJ 1978 L 233, p. 1.                                                         consist of the packaging of goods which are normally
(2) OJ 1993 L 165, p. 1.                                                         traded in packaged form (such as liquids, for example) is
                                                                                 the packaging of the goods to be equated with the shape
                                                                                 of the goods for the purpose of trade mark law in such a
                                                                                 way that
 ---pagebreak--- 11.8.2001              EN                    Official Journal of the European Communities                                        C 227/11
      (a)   the packaging of the goods is to be regarded as the         —     Order the Kingdom of Belgium to pay the costs.
            shape of the goods for the purpose of Article 3(1)(e)
            of the directive; and
      (b) the packaging of the goods may serve to designate
            the (external) quality of the packaged goods for the        Pleas in law and main arguments
            purpose of Article 3(1)(c) of the directive?
2.    In the case of three-dimensional trade marks which                —     Failure correctly to transpose Article 7(5) of Directive
      consist of the packaging of goods which are normally                    97/33/EC: under the last two sentences of the second
      traded in packaged form does the establishment of                       subparagraph of Article 7(5) of Directive 97/33, com-
      distinctive character within the meaning of Article 3(1)(b)             pliance with the cost accounting system must be verified.
      of the directive turn on whether or not the average                     The Directive states that a statement concerning com-
      consumer, who is reasonably well-informed and reason-                   pliance must, in addition, be published annually. Those
      ably observant and circumspect, is able to recognise the                obligations are not included in the Belgian legislation.
      characteristic features of the three-dimensional trade
      mark applied for, which differ from the norm or custom
      in the sector and are therefore decisive as regards its           —     Failure correctly to transpose Article 9(3) of Directive
      capability of serving as an indication of origin, even                  97/33/EC: the provisions communicated by the Belgian
      without conducting an analytical or comparative examin-                 authorities as implementing measures, namely the fifth
      ation or without paying particular attention?                           subparagraph of Article 109B(4) of the Law of 21 March
                                                                              1991 and Articles 8 and 12 of a decree of 20 April 1999,
3.    Can the necessary assessment of distinctive character be                only partially cover the obligations imposed by the
      made solely on the basis of the relevant national trade                 Directive, since Article 109B(4) concerns solely the
      perceptions without further official investigations being               obligation imposed by the Belgian legislature on organis-
      necessary to establish whether and to what extent ident-                ations with ‘significant [market] power’ to publish a
      ical or comparable trade marks have been registered or                  reference offer which may be used as a basis for
      refused registration in other Member States of the Euro-                subsequent negotiations; it is that reference offer which
      pean Union?                                                             may be changed by the Institute, a possibility which
                                                                              clearly cannot be construed as a right of intervention in
                                                                              favour of that institute in any negotiation or discussion
(1) OJ L 40 of 11.2.1989, p. 1.                                               concerning an interconnection agreement. Nor do the
                                                                              provisions of the Decree of 20 April 1999 provide for
                                                                              the regulatory authorities to be able to intervene in the
                                                                              negotiations ‘on their own initiative at any time’.
                                                                        —     Failure correctly to transpose Article 14(1) and (2): in
                                                                              respect of the information relating to the reference
Action brought on 5 June 2001 by the Commission of the                        interconnection offer, which is identified in Article 7(3)
 European Communities against the Kingdom of Belgium                          of the Directive, and the main elements of the national
                                                                              numbering plans referred to in Article 12(4) of the
                                                                              Directive, the Belgian authorities have opted for a means
                         (Case C-221/01)
                                                                              of communication in accordance with Article 14(2)
                                                                              of the Directive, whereas Article 7(3) is covered by
                         (2001/C 227/18)                                      Article 14(1) which requires easy access to the infor-
                                                                              mation and therefore access which is more direct than
An action against the Kingdom of Belgium was brought before                   that by individual request. In respect of the information
the Court of Justice of the European Communities on 5 June                    referred to in Article 9(2) of the Directive (general
2001 by the Commission of the European Communities,                           conditions of interconnection) and the information
represented by H. van Lier, acting as Agent, with an address                  referred to in Article 10 of the Directive, the Belgian
for service in Luxembourg.                                                    legislation does not provide for any publication or
                                                                              communication in any form whatever. Finally, in respect
The Commission of the European Communities claims that                        of the information referred to in Article 9(3) of the
the Court should:                                                             Directive, the Belgian legislation still does not provide for
                                                                              access at the request of interested parties.
—     Declare, pursuant to Article 226 EC, that by failing to
      adopt all the laws, regulations or administrative pro-
      visions necessary to comply with Directive 97/33/EC of
      the European Parliament and of the Council of 30 June
      1997 on interconnection in Telecommunications with                (1) OJ L 199 of 26.07.1997, p. 32.
      regard to ensuring universal service and interoperability
      through application of the principles of Open Network
      Provision (ONP) (1), in particular with Articles 7(5), 9(3)
      and 14(1) and (2) thereof, Belgium has failed to fulfil its
      obligations under that directive; and