CELEX: C2001/108/20
Language: en
Date: 2001-04-07 00:00:00
Title: Case C-97/01: Action brought on 27 February 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg

C 108/12                 EN                      Official Journal of the European Communities                                    7.4.2001
Must Article 3(a) and (b) of the Treaty of Rome, the first recital          Reference for a preliminary ruling by the Tribunal de
in the preamble to, and Article 3(2) of, Directive 92/12 of                 Grande Instance (Regional Court), Paris (31st Chamber)
25 February 1992 on the general arrangements for products                   by judgment of that court of 19 February 2001 in the case
subject to excise duty (1), and the sixth and eighth recitals in            of Ministère Public against John Greenham and Léonard
the preamble to Directive 92/81 of 19 October 1992 on the                                                 Abel
harmonisation of the structures of excise duties on mineral
oils (2) be interpreted as precluding the French Republic
from refusing to reimburse the domestic duty on petroleum                                            (Case C-95/01)
products (TIPP) paid by a trader in petroleum products
following the failure by one of his customers to make payment?
                                                                                                    (2001/C 108/19)
(1) Council Directive 92/12/EEC of 25 February 1992 on the general
    arrangements for products subject to excise duty and on the
    holding, movement and monitoring of such products (OJ 1992              Reference has been made to the Court of Justice of the
    L 76, 23.03.1992, p. 1).                                                European Communities by judgment of the Tribunal de
(2) Council Directive 92/81/EEC of 19 October 1992 on the harmon-           Grande Instance (Regional Court), Paris (31st Chamber) of
    isation of the structures of excise duties on mineral oils (OJ 1992     19 February 2001, received at the Court Registry on 27 Febru-
    L 316, 31.10.1992, p. 12).                                              ary 2001, for a preliminary ruling in the case of Ministère
                                                                            Public against John Greenham and Léonard Abel on the
                                                                            following question:
                                                                            Must Articles 28 and 30 of the Treaty be interpreted as
                                                                            prohibiting a Member State from preventing the free move-
                                                                            ment and marketing of a food supplement lawfully sold in
Reference for a preliminary ruling by the French Cour de                    another Member State?
cassation, Commercial, Financial and Economic Chamber,
by judgment of that court of 13 February 2001 in the case
of SARL, Borie Manoux v Directeur de l’Institut national
                de la propriété industrielle (INPI)
                            (Case C-81/01)
                           (2001/C 108/18)
Reference has been made to the Court of Justice of the                      Action brought on 27 February 2001 by the Commission
European Communities by a judgment of the French Cour de                    of the European Communities against the Grand Duchy
cassation (Court of Cassation), Commercial, Financial and                                           of Luxembourg
Economic Chamber, of 13 February 2001, received at the
Court Registry on 16 February 2001, for a preliminary ruling
in the case of SARL Borie Manoux v Directeur de l’Institut
                                                                                                     (Case C-97/01)
national de la propriété industrielle (INPI) on the following
question:
                                                                                                    (2001/C 108/20)
Must Article 40 of Regulation No 2392/89 (1) be interpreted
as prohibiting the registration as a trade mark, for the products
covered by the regulation, of a geographical reference the use              An action against the Grand Duchy of Luxembourg was
of which is not provided for by Article 11, even where the                  brought before the Court of Justice on 27 February 2001 by
registration of such a trade mark is not likely to mislead the              the Commission of the European Communities, represented
consumer as to the provenance of the wine and does not                      by S. Rating and F. Siredey-Garnier, acting as Agents, with an
give rise to any confusion with a registered geographical                   address for service in Luxembourg.
designation, in so far as such registration might suggest that
the geographical reference in question, which relates to the
region where that wine is actually produced but which covers                The applicant claims that the Court should:
other designations of origin, is protected?
                                                                            —    declare that, by failing to ensure the transposition in
(1) Council Regulation (EEC) No 2392/89 of 24 July 1989 laying                   practice of Article 4d of Directive 90/388/EEC(1), as
    down general rules for the description and presentation of wines             amended by Directive 96/19/EC (2), the Grand Duchy of
    and grape musts (OJ L 232, 9.8.1989, p. 13).                                 Luxembourg has failed to comply with its obligations;
                                                                            —    order the Grand Duchy of Luxembourg to pay the costs.
 ---pagebreak--- 7.4.2001               EN                    Official Journal of the European Communities                                            C 108/13
Pleas in law and main arguments                                         the above-mentioned provision, to the advantage of the
                                                                        traditional operator.
The Commission complains that the Grand Duchy has failed
to ensure that rights of way are not discriminatory in                  (1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
nature; that failure may result either in the provisions of the             tition in the markets for telecommunications services (OJ L 192
Luxembourg Law on telecommunications of 27 March 1997                       of 24.7.1990, p. 10).
being incorrectly applied or in the need for additional measures        (2) Commission Directive 96/19/EC of 13 March 1996 amending
                                                                            Directive 90/388/EEC with regard to the implementation of full
to be incorporated into the Luxembourg legal order so as to
                                                                            competition in telecommunications markets (OJ L 74, 22.3.1996,
ensure that Article 4d of the directive is properly transposed.             p. 13).
The rules applicable to the approval procedure laid down in
Article 35(1) of the Law are imprecise, especially as regards
the connection between those rules and the traditional pro-
cedures for the grant of rights of way. The Luxembourg
Government has still not determined or published those rules,           Reference for a preliminary ruling by the French Conseil
and, in the absence of them, the various administrative                 d’État, Section du Contentieux, 2ème et 1ère sous-sections
authorities competent to grant rights of way over public land           réunies, by decision of that court of 29 December 2000
have not granted such rights to new operators entering the              in the case of Ministre de l’intérieur against Aitor Oteiza
market, even though the Law in question provides for this.                                            Olazabal
                                                                                                  (Case C-100/01)
As regards rights of way along the motorway network, the
Luxembourg authorities have pointed out certain difficulties                                      (2001/C 108/21)
resulting from the legislation relating to the creation of a large-
scale road communication system, whereas, according to the              Reference has been made to the Court of Justice of the
information available to the Commission, the work involved              European Communities by decision of 29 December of the
in laying supply and distribution cables along motorways has            French Conseil d’État, Section du Contentieux, 2ème et 1ère
been undertaken since that legislation entered into force.              sous-sections réunies (Council of State, sitting in judicial
                                                                        formation, 2nd and 1st sub-divisions combined), received at
As far as the Commission is aware, the complainant Coditel              the Court Registry on 28 February 2001, for a preliminary
has been provided with no cogent justification for the refusals         ruling in the case of Ministre de 1’intérieur against Aitor Oteiza
which it has met with from the various organisations and                Olazabal on the following question:
administrative authorities in response to its applications for
the grant of rights of way. In particular, those refusals make          Do Articles 6, 8a and 48 of the Treaty of Rome, now Articles
no reference whatever to the applicable essential requirements          12 EC, [18] EC and 48 EC, the principle of proportionality
provided for in Article 4d of Directive 90/388 as amended.              applicable in Community law and the provisions of secondary
                                                                        law adopted to implement the Treaty, in particular Directive
                                                                        62/221/EEC of 25 February 1964 (1), preclude a Member State
According to the information available to the Commission, no            from adopting, as against a national of another Member State
network operator seeking, as a new entrant, to enter the                to which the provisions of the Treaty apply, a measure for the
market has yet been granted any rights of way over public               maintenance of public order which, subject to judicial review,
land enabling that operator to provide a connection between             restricts that national’s residence to a part of the national
local networks and networks stretching from frontier to                 territory when interests of public order preclude him from
frontier and over the border, such as to place that operator in         residing in the remainder of the territory, or in such circum-
the position of being able to offer telecommunications services         stances is the only measure restricting residence that can
in competition with the traditional operator EPT.                       lawfully be taken as against that national a measure excluding
                                                                        him from the whole territory and adopted in accordance with
By failing to take all the measures necessary in order to ensure        national law?
the effective and non-discriminatory exercise of rights of
way, and by thereby deviating from Article 4d of Directive              (1) Directive 64/221/EEC of the Council of 25 February 1964 on the
90/388/EEC as amended by Directive 96/19/EC, the Grand                      coordination of special measures concerning the movement and
Duchy of Luxembourg has, at the very least, granted itself an               residence of foreign nationals which are justified on grounds of
additional period in which to implement the regulatory                      public policy, public security or public health (OJ, English Special
framework underlying the liberalisation; it has thus infringed              Edition 1964, p. 117).