CELEX: C2003/304/17
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-405/03: Reference for a preliminary ruling by the Gerechtshof te 's-Gravenhage by order of that Court of 28 August 2003 in the proceedings between Class International BV and 1. Colgate-Palmolive Company, 2. Unilever NV, 3. Smithkline Beecham PLC, and 4. Beecham Group PLC

C 304/12              EN                         Official Journal of the European Union                                         13.12.2003
1.   Is Article 12 of the EC Treaty (as amended by the                        territory of a Member State, of original branded goods
     Treaty of Amsterdam) to be interpreted as meaning that                   (bearing a trade mark within the meaning of the afore-
     Paragraph 1a(1)1, Paragraph 10(1)1 of the Einkommen-                     mentioned directive, the UBL and/or Regulation No 40/
     steuergesetz, to the effect that a taxpayer resident in                  94) which have not been introduced into the EEA by the
     Germany is not entitled to deduct maintenance payments                   proprietor of the trade mark or with his consent, which
     to his divorced spouse resident in Austria whereas he                    come from outside the EEA and which have the customs
     would be entitled to do so were she still resident in                    status of non-Community goods (for example, T 1 or
     Germany, is incompatible therewith?                                      AAD)?
2.   If Question 1 is answered in the negative: is
     Article 18(1)EC to be interpreted as meaning that Para-             (3) Does it make any difference to the answers to Ques-
     graph 1a(1)1, Paragraph 10(1)1 of the Einkommensteuer-                   tions (1) and (2) whether or not, at the time of entering
     gesetz, to the effect that a taxpayer resident in Germany                the abovementioned territory, the final destination of
     is not entitled to deduct maintenance payments for his                   those goods is specified, or that no (purchase) agreement
     divorced spouse resident in Austria whereas he would be                  has or has yet been concluded with a customer in a third
     entitled to do so were she still resident in Germany, is                 country in respect of those goods?
     incompatible therewith?
                                                                         (4) In the context of answering Questions (1), (2) and (3), is
                                                                              it relevant whether there are additional circumstances,
                                                                              such as
                                                                              (a)   the circumstance that the trader, who is the owner
Reference for a preliminary ruling by the Gerechtshof te                            of the goods in question or in any event is entitled
’s-Gravenhage by order of that Court of 28 August 2003                              to dispose of them and/or engages in parallel trade,
in the proceedings between Class International BV and                               is established in one of the Member States;
1. Colgate-Palmolive Company, 2. Unilever NV, 3. Smith-
      kline Beecham PLC, and 4. Beecham Group PLC
                                                                              (b) the circumstance that those goods are being offered
                        (Case C-405/03)                                             for sale or sold by the trader established in a Member
                                                                                    State, from that Member State, to another trader
                                                                                    established in a Member State, whilst the place of
                        (2003/C 304/17)                                             delivery is not (yet) specified;
                                                                              (c)   the circumstance that those goods are being offered
Reference has been made to the Court of Justice of the                              for sale or sold by the trader established in a Member
European Communities by order of the Gerechtshof te                                 State, from that Member State, to another trader
’s-Gravenhage (Regional Court of Appeal, The Hague) of                              established in a Member State, whilst the place of
28 August 2003, received at the Court Registry on 29 Septem-                        delivery of the goods to be offered for sale or sold in
ber 2003, for a preliminary ruling in the proceedings between                       that way is specified but the final destination is not,
Class International BV and 1. Colgate-Palmolive Company,                            whether or not with the expressly statement or
2. Unilever NV, 3. Smithkline Beecham PLC, and 4. Beecham                           contractual restriction that the goods involved are
Group PLC on the following questions:                                               non-Community (transit) goods;
(1) May the proprietor of a trade mark oppose the introduc-
     tion without his consent of goods from third countries,                  (d) the circumstance that those goods are being offered
     bearing a trade mark within the meaning of the directive                       for sale or sold by the trader established in a Member
     and/or of Regulation No 40/94 (1), into the territory of a                     State to a trader established outside the EEA, whilst
     Member State (in this case the territory of the Netherlands/                   the place of delivery and/or final destination of the
     Benelux countries) in the context of transit or transit                        goods may or may not be specified;
     trade as referred to below?
(2) Does ‘using [a sign] in the course of trade’ within                       (e)   the circumstance that those goods are being offered
     the meaning of the opening words of Article 5(1) in                            for sale or sold by the trader established in a Member
     conjunction with Article 5(3)(b) and (c) of the directive                      State to a trader established outside the EEA, who
     and the opening words of Article 9(1) in conjunction                           the (parallel) trader knows or has serious reason to
     with Article 9(2)(b) and (c) of Regulation No 40/94 cover                      suppose will resell or supply the goods in question
     the storing, in a customs office or warehouse within the                       to ultimate consumers within the EEA?
 ---pagebreak--- 13.12.2003             EN                       Official Journal of the European Union                                         C 304/13
(5) Must the term ‘offering’ in the provisions referred to in           Pleas in law and main arguments
     Question (1) be construed as also meaning the offering
     (for sale) of original branded goods (bearing a trade mark
     within the meaning of the directive, the UBL and/or                The period for transposition of the directive expired on 30 June
     Regulation 40/94) which are stored in a customs office             2002.
     or warehouse within the territory of a Member State,
     which have not been introduced into the EEA by the
                                                                        (1) OJ 2000 L 14 of 20.1.2000, p. 29.
     proprietor of the trade mark or with his consent, which
     come from outside the EEA and which have the status of
     non-Community goods (for example, T 1 or AAD), in the
     circumstances set out above in Questions (3) and (4)?
(6) With which of the parties does the burden of proof rest
     as regards the acts mentioned above under (1), (2) and             Action brought on 30 September 2003 by the Italian
     (5)?                                                               Republic against the Commission of the European Com-
                                                                                                    munities
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                                 (Case C-430/03)
    Community trade mark (OJ L 11 of 14.1.1994, p. 1).
                                                                                                (2003/C 304/19)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
                                                                        Communities on 30 September 2003 by the Italian Republic
                                                                        represented by Ivo M. Braguglia, acting as Agent and Maurizio
                                                                        Fiorilli, Avvocato dello Stato.
Action brought on 1 October 2003 by the Commission
of the European Communities against the Italian Republic                The applicant claims that the Court should:
                                                                        annul Commission Decision C(2003) 2587 def. of 22 July
                         (Case C-410/03)                                2003 in so far as it excludes from Community financing the
                                                                        following entries:
                         (2003/C 304/18)                                a)    Fruit and vegetables — ITALY — 1515 — Flat-rate
                                                                              corrections of 5 % (2000/2001) and 10 % (1999/2000)
                                                                              for shortcomings in controls: EUR 22 251 827,08
                                                                        b)    Olive oil, fibre plants and seed — ITALY —1210 —
                                                                              Flat-rate correction of 2 % for shortcomings in the
An action against the Italian Republic was brought before the
                                                                              management and effectiveness of controls: EUR
Court of Justice of the European Communities on 1 October
                                                                              13 048 335,00.
2003 by the Commission of the European Communities
represented by Karen Banks and Knut Simonsson, acting as
Agents.
                                                                        Pleas in law and main arguments
The applicant claims that the Court should:                             The applicant submits that the flat-rate corrections concerning
                                                                        the system of aid for the processing of tomatoes and the flat-
—    declare that, by failing to adopt the laws, regulations            rate correction concerning the system of production aid for
     and administrative provisions necessary to comply with             olive oil, notified by Commission Decision 2003/536/EC (1) of
     Directive 1999/95/EC (1) of the European Parliament and            22 July 2003 (notified under document number C(2003)
     of the Council of 13 December 1999 concerning the                  2587) are unlawful in so far as they are based on inadequate
     enforcement of provisions in respect of seafarers’ hours           investigation and in breach of the rules of co-operation in
     of work on board ships calling at Community ports or               good faith. According to the applicant, the financial corrections
     by failing to communicate those provisions to the                  should therefore be annulled.
     Commission, the Italian Republic has failed to fulfil its
     obligations under that directive;                                  (1) OJ 2003 L 184 of 23.7.2003, p. 42.
—    order the Italian Republic to pay the costs.