CELEX: C2003/031/19
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-448/02: Action brought on 11 December 2002 by the Hellenic Republic against the Commission of the European Communities

8.2.2003                EN                       Official Journal of the European Union                                          C 31/13
The Appellant claims that the Court should:                              findings that the relevant consumer is not used to regarding
                                                                         designs applied to the surface of glass sheets as an indication
                                                                         of the trade origin of the goods, and that the design is not
1.    annul the judgment of the Court of First Instance of               immediately recognisable as an indication of the trade origin
      9 October 2002 in Case T-36/01 Glaverbel v. Office for             of the goods but as a functional component.
      Harmonization (glass pattern) in so far as it found that
      the First Board of Appeal of the Office for Harmonization
      in the Internal Market (Trademarks and Designs) did not
                                                                         (1 ) OJ C 118, 21.04.2001, p. 41.
      infringe Article 7 (1)(b) of Council Regulation (EC)
                                                                         (2 ) OJ L 011, 14.01.1994, p. 1.
      No 40/94 of 20 December 1993 on the Community
      trademark ( 2) in adopting its decision of 30 November
      2000 (Case R 137/2000-1).
2.    annul the decision of the First Board of Appeal of
      the Office of Harmonization in the Internal Market
      (Trademarks and Designs) of 30 November 2000 (Case R
      137/2000-1) in so far as it refused the application
      No. 811 281 for registration of a design applied to a
      surface of the goods (glass pattern) as a trademark on the
      basis of Article 7 (1)(b) of Regulation No 40/94;                  Action brought on 11 December 2002 by the Hellenic
                                                                         Republic against the Commission of the European Com-
                                                                                                      munities
3.    orders the Office for Harmonization in the Internal
      Market (Trademarks and Designs) to pay the costs both
      at first instance and on appeal.                                                           (Case C-448/02)
                                                                                                  (2003/C 31/19)
Pleas in law and main arguments
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
By annulling the contested decision for the infringement of a            Communities on 11 December 2002 by the Hellenic Republic,
right to a hearing with respect to the arguments based on                represented by Ioannis Khalkias and Georgios Kanellopoulos,
Article 7 (3) of Regulation No 40/94 and in doing so on that             Members of the State Legal Service, with an address for service
ground alone, the contested judgment allowed that part of the            in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix.
decision relating to the registrability of the Community
trademark application in respect of Article 7 (1)(b) of the
Regulation to stand.
                                                                         The applicant claims that the Court should:
                                                                         —     annul or, in the alternative, amend Commission Decision
The Appellant maintains that in order for the OHIM to                          C(2002) 3771 of 14 October 2002 amending Decision
take the necessary measures to comply with the contested                       1999/187/EC ( 1), relating to the exclusion from Com-
judgment, the OHIM could therefore simply confine itself to                    munity funding of certain expenditure incurred by the
considering the arguments submitted by the Appellant in                        Member States within the framework of the Guarantee
respect of Article 7 (3) without altering its interpretation of                Section of the EAGGF (2), so far as concerns financial
Article 7 (1)(b) of the Regulation. Accordingly the Appellant                  corrections to the detriment of the Hellenic Republic in
submits that it has an interest in appealing the contested                     the arable crops sector for the financial year 1995.
judgment.
The Appellant submits that the CFI was wrong in finding that             Grounds for annulment and main arguments
the sign in question is devoid of any distinctive character for
the purposes of Article 7 (1)(b) of Regulation No 40/94 and
that that finding is based on a wrong assessment and                     —     The differences are not actual; incorrect interpretation
interpretation of the aforementioned article. The Appellant                    and application of Article 5(2)(c) of Regulation (EEC)
also maintains that the Board of Appeal was not correct in its                 No 729/70.
 ---pagebreak--- C 31/14                 EN                       Official Journal of the European Union                                         8.2.2003
—     Lump-sum financial corrections have already been                   Pleas in law and main arguments
      imposed in respect of the crop years 1994, 1995 and
      1996 for the same reason; lack of a statement of reasons,
      or otherwise an insufficient statement of reasons, because
      of an error as to the facts, of misappraisal of the facts and      The time-limit for transposition expired on 31 July 2001.
      of a failure to take account of relevant matters.
—     In the alternative: the Commission lacked competence
      ratione temporis; incorrect interpretation and application         (1 ) OJ 1999 L 201, p. 77.
      of Article 5(2)(c) of Regulation No 729/70 and
      Article 8(1) of Regulation No 1663/95.
( 1) OJ No L 61, 10.3.1999, p. 37.
( 2) OJ No L 280, 18.10.2002, p. 88.
                                                                         Reference for a preliminary ruling by the Tribunale Penale
                                                                         di Terni (Italy) by order of that court of 20 November
                                                                             2002 in criminal proceedings against Antonio Niselli
Action brought on 11 December 2002 by the Commission
of the European Communities against the Kingdom of
                               Spain                                                              (Case C-457/02)
                         (Case C-449/02)
                                                                                                   (2003/C 31/21)
                          (2003/C 31/20)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Tribunale Penale di
An action against the Kingdom of Spain was brought before the
                                                                         Terni (Italy) of 20 November 2002, which was received at the
Court of Justice of the European Communities on 11 December
                                                                         Court Registry on 18 December 2002, for a preliminary
2002 by the Commission of the European Communities,                      ruling in criminal proceedings against Antonio Niselli on the
represented by Maria Patakia, Legal Adviser, and Isabel Martí-
                                                                         following questions to determine whether the definition of
nez del Peral, of its Legal Service, acting as Agents.
                                                                         ‘waste’ introduced by Directive 75/442/EEC (1), as amended by
                                                                         Directive 91/156/EEC (2), must continue to be understood and
                                                                         interpreted for the time being in Italy in the light of the case-
The applicant claims that the Court should :                             law of the Court of Justice cited above or in the light of
                                                                         Article 14 of Legislative Decree No 138 of 8 July 2002,
                                                                         converted into Law No 178 of 8 August 2002:
—     Declare that, by failing to adopt and bring into force
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Directive 1999/42/EC ( 1) of the European Parliament and
      of the Council of 7 June 1999 establishing a mechanism             Must the concept of waste be strictly subject to the following
                                                                         conditions: that the words ‘discards’, ‘intends to discard’ or ‘is
      for the recognition of qualifications in respect of the
      professional activities covered by the Directives on liberal-      required to discard’, introduced into Italian law by
                                                                         Article 6(1)(a) of Legislative Decree No 22 of 5 February 1997,
      isation and transitional measures and supplementing the
      general systems for the recognition of qualifications or,          are to be interpreted as follows:
      in any event, by failing to communicate them, the
      Kingdom of Spain has failed to fulfil its obligations under
      that directive;                                                    (a)   ‘discards’: any conduct whereby, directly or indirectly,
                                                                               substances, materials or goods are disposed of or subject-
                                                                               ed to disposal or recycling, in accordance with Annexes B
—     Order the Kingdom of Spain to pay the costs.                             and C to Legislative Decree No 22;