CELEX: C1997/387/15
Language: en
Date: 1997-12-20 00:00:00
Title: Action brought on 28 October 1997 by the Italian Republic against the Commission of the European Communities (Case C-372/97)

C 387/ 10                EN                  Official Journal of the European Communities                                       20 . 12 . 97
1989 , p. 1 , 'the Trade Mark Directive') to be interpreted                     The Italian Republic states that the aid is, all in all ,
as meaning that the trade mark entitles its proprietor to                       of an extremely modest amount. Apart from the very
prohibit a third party from using the mark for goods                            limited extent of the aid, which in itself is indicative
which have been put on the market under that mark in a                          of the fact that it is hardly likely to have any impact
State which is not a Contracting State ?                                        on Community trade or competition, it is noteworthy
                                                                                that no mention is or has been made of any such
                                                                                impact;
May the proprietor of the trade mark on the basis of
Article 7 ( 1 ) of the Trade Mark Directive alone seek an
order that the third party cease using the trade mark for
goods which have been put on the market under that                      ( b ) Incorrect exclusion of the permitted derogations,
mark in a State which is not a Contracting State ?                              without reasons being given: infringement and
                                                                                misapplication of Article 92 ( 3 ) ( c ) of the EC Treaty
                                                                                and of Article 3 ( 1 ) ( d ) of Council Regulation ( EEC )
                                                                                No 1107/70 of 4 June 1970 ( 2 ).
                                                                                The Commission states that the derogations provided
      Action brought on 28 October 1997 by the Italian                          for by both the above provisions are inapplicable .
      Republic against the Commission of the European                           However, rather than giving a definitive ruling of
                             Communities
                                                                                incompatibility, the Commission merely expresses
                          ( Case C-372/97)                                      doubts concerning legality and then concludes,
                                                                                without a proper and logical statement of reasons,
                            ( 97/C 387/ 15 )                                    that the derogations are unavailable;
An action against the Commission of the European                         (c)     Incorrect description of the measures as ' new' aid.
Communities was brought before the Court of Justice on
                                                                                 The fact that the measures concerned predate the
28 October 1997 by the Italian Republic, represented by
Oscar Fiumara, Avvocato dello Stato, with an address for
                                                                                 1981 Law and the 1985 Law and were thus adopted
                                                                                 before the entry into force of the Community
service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adelaide .
                                                                                 legislation which liberalized the carriage of goods by
                                                                                 road by way of cabotage by opening up the sector to
                                                                                 competition implies that such measures, where they
                                                                                 are regarded as ' aid', should be described as 'existing
The applicant claims that the Court should:                                      aid '.
— annul in its entirety the decision of the Commission of
      the European Communities of 30 July 1997 (C ( 97 )                         The Commission, having treated the measures in
      2735 final ) ( M ,                                                         question as new aid, and, as a result, as being subject
                                                                                 to the procedure provided for in Article 93 ( 3 ), and
                                                                                 having in consequence adopted a decision declaring
                                                                                 the measures to be unlawful and incompatible,
— in the alternative, annul the part of that decision                            expressly requiring the funds to be repaid to the
      ( Article 5 ) which imposes the obligation to recover the                  State, a serious infringement of essential procedural
      aid granted as from 1 July 1990, plus interest,                            requirements has been committed rendering the
                                                                                 decision invalid, at least in so far as it requires
                                                                                 recovery the aid paid;
 — in both cases, order the Commission of the European
      Communities to pay the costs.
                                                                          ( d ) Infringement of the principle of the protection of
                                                                                  legitimate expectations and the principle of
 Pleas in law and main arguments adduced in support:
                                                                                  reasonableness as regards the instruction that aid
                                                                                  paid as from 1 July 1990 be recovered . Since the aid
                                                                                  has been paid for many years, the requirement of
 (a )   Incorrect classification of the measures as aid .                         recovery is inimical to the principles of the protection
        The measures provided for by Regional Law No 4/                           of legitimate expectations and legal certainty. It is
        1985 cannot be regarded as constituting prohibited                        inconceivable that the State and economic operators
        aid, for two reasons: they do not affect intra­                           themselves could, in 1981 and then in 1985 , foresee
        Community trade and they are not liable to have any                       that the aid, which at that time was granted as a
        impact on competition .                                                   matter of routine, would so many years later be
 ---pagebreak--- 20 . 12 . 97                                     Official Journal of the European Communities                                  C 387/ 11
          regarded as unlawful solely as regards that granted               Reference for a preliminary ruling by the Tribunal de
          on or after 1 July 1990 .                                         Commerce ( Second Chamber), Tournai, by judgment of
                                                                            that court of 30 October 1997 in the case of General
(') Concerning aid granted to the Friuli Venezia Giulia Region in                         Motors Corporation v. Yplon SA
       favour of road hauliers of that region.                                                     ( Case C-375/97 )
( 2 ) OJ English Special Edition 1979 ( II ), p. 360 .
                                                                                                      ( 97/C 387/17 )
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Tribunal de
                                                                            Commerce ( Second Chamber), Tournai, of 30 October
Reference for a preliminary ruling by the Bayerische                        1997, received at the Court Registry on 3 November
Verwaltungsgerichtshof by order of that court of                            1997, for a preliminary ruling in the case of General
20 October 1997 in the case of Anton Feyrer v. Landkreis                    Motors Corporation v. Yplon SA on the following
Rottal-Inn ( also party: Landesanwaltschaft Bayern as                       question:
                 representative of the public interest )
                              Case C-374/97                                 On reading Article 13 A ( 1 ) ( c ) of the Uniform Benelux
                              ( 97/C 387/ 16 )                              Law introduced pursuant to the amending protocol in
                                                                            force since 1 January 1996, what is the proper
                                                                            construction of the term 'repute of the trade mark ' and
Reference has been made to the Court of Justice of the                      may it also be said that such 'repute' applies throughout
European Communities by order of the Bayerische                             the Benelux countries or to part thereof?
Verwaltungsgerichtshof ( Bavarian Administrative Court )
of 20 October 1997, received at the Court Registry on
3 November 1997, for a preliminary ruling in the case of
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat ( also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following                     Reference      for a preliminary ruling by the
questions:                                                                  Arrondissementsrechtbank Rotterdam by order of that
                                                                            court of 30 October 1997 in the criminal proceedings
 1 . Can an individual oppose the collection of fees higher                                against Florus Ariel Wijsenbeek
        than the standard amounts listed in point 1 of the                                          ( Case C-378/97 )
        annex relating to Article 2 ( 1 ) of Council Directive 85/                                    ( 97/C 387/ 18 )
        73/EEC (') as amended by Council Directive 93/ 118/
        EC ( 2 ) where the Member State has not transposed
        Directive 93/ 118/EC into national law within the
                                                                            Reference has been made to the Court of Justice of the
        prescribed period ?                                                 European Communities by an order of the
                                                                            Arrondissementsrechtbank ( District Court ) Rotterdam of
 2 . Can a Member State collect fees higher than the                        30 October 1997, received at the Court Registry on
        standard amounts in reliance in point 4 ( b ) of the                5 November 1997, for a preliminary ruling in the criminal
        annex relating to Article 2 ( 1 ) of Council Directive 85/          proceedings against Florus Ariel Wijsenbeek on the
        73/EEC as amended by Directive 93/ 118/EC provided                  following questions :
        that the fees levied do not exceed the actual costs, no
        further conditions being imposed ?                                  Are the second paragraph of Article 7a of the EC Treaty,
                                                                            which provides that the internal market is to comprise an
                                                                            area without internal frontiers in which the free movement
 3 . Is the authorization given to Member States under
        Article 2 ( 3 ) of Council Directive 85/73/EEC as                   of persons is ensured, and Article 8a of the EC Treaty,
        amended by Directive 93/ 118/EEC to collect an                      which confers on all citizens of the Union the right to
        amount exceeding the Community fees dependent on                    move and reside freely within the territory of the Member
        the total fee collected in the Member State as a whole               States, to be interpreted as precluding national legislation
        and the actual inspection costs in the Member State as               of a Member State imposing an obligation, accompanied
        a whole or is it sufficient, when the Member State has               by criminal penalties for failure to comply, on persons
        delegated authorization to collect the fees to the local             ( whether or not citizens of the European Union ) to present
         authorities, that the total fee collected by the local              a passport on entry into a Member State whenever that
         authority is not greater than the actual inspection                 person enters the Member State through the national
        costs of that authority ?                                            airport coming from another Member State ?
 (') OJ L 32, 5 . 2 . 1985 , p . 14 .                                        Does any other provision of Community law preclude
 ( 2 ) OJ L 340 , 31 . 12 . 1993 , p . 15 .                                  such an obligation ?