CELEX: C2002/068/09
Language: en
Date: 2002-03-16 00:00:00
Title: Case C-475/01: Action brought on 6 December 2001 by the Commission of the European Communities against the Hellenic Republic

C 68/4                 EN                     Official Journal of the European Communities                                       16.3.2002
Appeal brought on 6 December 2001 by Procter &                                 at the relevant date and, if not, whether the difference is
Gamble Company against the judgment delivered on                               perceptible, rendering it apt to confer distinctive character
19 September 2001 by the Second Chamber of the Court                           on the Marks;
of First Instance of the European Communities in case
T-128/00 (1) between Procter & Gamble Company and
Office for Harmonisation in the Internal Market (Trade                   —     in failing to assess whether the specific pattern (speckles
                                                                               and square or triangular inlays in the centre and on the
                  Marks and Designs) (OHIM)
                                                                               upper surface of the tablet) was already part of the usual
                                                                               get-ups of the tablets on the market at the relevant date
                        (Case C-473/01 P)                                      and, if not, whether the difference is perceptible, rendering
                                                                               it apt to confer distinctive character on the Marks.
                          (2002/C 68/08)
                                                                         (1) OJ C 192, 8.7.2000, p. 25.
An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance
of the European Communities in case T-128/00 between
Procter & Gamble Company and Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) was
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.              Action brought on 6 December 2001 by the Commission
                                                                         of the European Communities against the Hellenic
                                                                                                      Republic
The Appellant claims that the Court should:
                                                                                                  (Case C-475/01)
—     annul the judgment; insofar as the remainder of the
      action was dismissed;
                                                                                                   (2002/C 68/09)
—     order the OHIM to pay the costs both at first instance
      and on appeal.
                                                                         An action against the Hellenic Republic was brought before
                                                                         the Court of Justice of the European Communities on 6 Decem-
Pleas in law and main arguments                                          ber 2001 by the Commission of the European Communities,
                                                                         represented by Maria Kondou-Durande and Enrico Traversa,
                                                                         Legal Advisers.
The Appellant submits that the Court of First Instance erred in
the following respects:
                                                                         The Commission claims that the Court should:
—     in deeming it unnecessary to decide whether the distinc-
      tive character of the Mark should be assessed by reference
      to the date on which the application for registration is           —     declare that, by maintaining in force excise duty on ouzo
      filed or the date of actual registration;                                at a lower rate than that applied to other alcoholic
                                                                               beverages, the Hellenic Republic has failed to fulfil its
—     in holding that the level of attention given by the average              obligations under the first paragraph of Article 90 of the
      consumer to the shape and colours of washing machine                     EC Treaty;
      and dishwasher tablets is not high;
                                                                         —     order the Hellenic Republic to pay the costs.
—     in deeming it appropriate to ascertain whether the Marks
      applied for will enable the members of the public targeted
      to distinguish the products from those having a different
      trade origin when they come to select a product for
      purchase;                                                          Pleas in law and main arguments
—     in holding that the bevelled edges, slightly rounded
      corners or chamfered edges of the tablets are not likely to        Law No 2127/93 transposes Directive 92/83/EEC (1) into
      be perceived by the average consumer as a distinctive              Greek law. That Law sets the basic rate of excise duty at GRD
      feature of the shape claimed, capable of distinguishing it         per 100 litres of pure alcohol. However, Article 26 of the Law
      from other washing machine or dishwasher tablets and               provides for a 50 % reduction in the basic rate with regard to
      in failing to assess whether such features were already            ouzo. Thus, for that particular product the excise duty amounts
      part of the usual get up(s) of thetablets on the market            to only GRD per 100 litres of pure alcohol.
 ---pagebreak--- 16.3.2002             EN                     Official Journal of the European Communities                                           C 68/5
The Commission concludes that the spirit and purpose of                 Reference for a preliminary ruling by the Tribunale
Directive 92/83 do not allow the Member States to adopt                 Amministrativo Regionale per la Puglia by order of
measures which result in discrimination against similar prod-           10 October 2001 in the case of Anna Fascicolo and Others
ucts imported from other Member States and that, in any                 against Regione Puglia and of Grazia Berardi and Others
event, Article 23(2) of Directive 92/83 cannot under any                 against Azienda Unità Sanitaria Locale BA/4 and Others
circumstances justify an infringement of Article 90 EC.
That provision of the directive, which does not require, but                              (Cases C-10/02 and C-11/02)
allows, a reduced rate to be applied to the product in question,
charges the Member State with the responsibility for examining
whether, on the basis of the particular circumstances of the
market, the difference in taxation gives rise to protection of a                                 (2002/C 68/11)
domestic product and discrimination against imported prod-
ucts, in which case it must refrain from applying the reduced
rate.
A system of taxation can be considered compatible with the              Reference has been made to the Court of Justice of the
first paragraph of Article 90 EC only if it is arranged in such a       European Communities by order of the Tribunale Amministra-
way that it in any event precludes a higher charge being                tivo Regionale per la Puglia (Regional Administrative Court,
imposed on imported products than on domestic products.                 Puglia) of 10 October 2001, received at the Court Registry on
                                                                        15 January 2002, for a preliminary ruling in the case of Anna
                                                                        Fascicolo and Others against Regione Puglia and of Grazia
(1) OJ L 316, 31.10.1992, p. 21.
                                                                        Berardi and Others against Azienda Unità Sanitaria Locale
                                                                        BA/4 and Otheres on the questions
                                                                        1.   whether, under Article 7(2) of Directive 86/457/EEC (1)
                                                                             and Article 36(2) of Directive 93/16/EEC (2), for the
                                                                             purpose of the exercise of general medical practice a right
Reference for a preliminary ruling by the Verwaltungs-                       to practise acquired on or before 31 December 1994 is
gericht Mainz by order of 10 December 2001 in the case                       to be regarded as equivalent to the certificate of specific
of Emil Färber GmbH & Co. KG against Landkreis                               training in general medical practice;
                         Alzey-Worms
                                                                        2.   whether, pursuant to the abovementioned Community
                         (Case C-2/02)                                       provisions, with effect from 1 January 1995 the award of
                                                                             a certificate of specific training in general medical practice
                        (2002/C 68/10)                                       allows Member States to grant to doctors who also have
                                                                             a right to practise acquired on or before 31 December
                                                                             1994 more favourable terms in the form of access to a
                                                                             wider range of reserved posts than that granted to the
Reference has been made to the Court of Justice of the                       holders of either one qualification or the other;
European Communities by order of the Verwaltungsgericht
Mainz (Administrative Court, Mainz) of 10 December 2001,
received at the Court Registry on 7 January 2002, for a                 3.   if the previous question is answered in the affirmative,
preliminary ruling in the case of Emil Färber GmbH & Co. KG
against Landkreis Alzey-Worms on the following question:
                                                                             whether, finally, in view of the rules applicable to acquired
Is paragraph 2(a) of Chapter I of Annex A to Directive                       rights, the abovementioned condition allows the Member
85/73/EEC (1), in the version set out in Directive 96/43/EC (2),             States to grant the abovementioned doctors further
to be interpreted as meaning that the standard fee governed by               special treatment by in all cases granting them additional
that paragraph covering controls and inspections connected                   points for obtaining the certificate of specific training in
with cutting operations is payable only in respect of meat that              general medical practice.
is actually cut at a cutting plant, or is it to be interpreted as
meaning that such fee is payable in respect of all meat entering
the cutting plant, whether it is cut or not?
                                                                        (1) OJ L 267, 19.9.1986, p. 26.
                                                                        (2) OJ L 165, 7.7.1993, p. 1.
(1) OJ L 32, p. 14.
(2) OJ L 162, p. 1.