CELEX: C1997/040/04
Language: en
Date: 1997-02-08 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 5 December 1996 in Case C-69/95 Italian Republic v. Commission of the European Communities (EAGGF - Clearance of accounts - 1991 - Milk and milk products)

No C 40/2            [ EN |                Official Journal of the European Communities                                       8 . 2 . 97
H. Ragnemalm, Judges; G. Tesauro, Advocate-General; H.                         undertaking from using its right to import into a
von Holstein, Deputy Registrar, for the Registrar, has                         Member State products coming from another
given a judgment on 19 November 1996 , in which it has                         Member State where they are lawfully marketed
ruled :                                                                        and to market them under a particular trade mark
                                                                               in the Member State of importation, when other
The Second Council Directive (77/91 /EEC) of                                   traders have the same right, even if they do not use
13 December 1976 on coordination of safeguards which,                          it,
for the protection of the interests of members and others,
are required by Member States of companies within the
                                                                           — but not precluding a prohibition, on grounds of
meaning of the second paragraph of Article 58 of the
                                                                               consumer protection, on the marketing by all
Treaty, in respect of the formation of public limited                          traders of products coming from a Member State
liability companies and the maintenance and alteration of
                                                                               where they are lawfully marketed, provided that
their capital, with a view to making such safeguards                           the prohibition is necessary in order to ensure
equivalent, in particular Article 29 ( 1 ) and (4) thereof,                    consumer protection and proportionate to that
does not preclude a Member State 's domestic law from                          objective, which must be incapable of being
granting a right of pre-emption to shareholders in the                         achieved by measures which are less restrictive of
event of an increase in capital by consideration in kind                       intra- Community trade . The national court must,
and from subjecting the legality of a decision withdrawing                     in particular, examine whether the risk of
that right of pre-emption to a substantive review of the                       misleading consumers is sufficiently serious to be
kind laid down by the Bundesgerichtshof.                                       able to override the requirements of the free
                                                                               movement of goods .
H OJ No C 101 , 22 . 4 . 1995 .
                                                                      2 . Article 12 (2) (b) of Council Directive 89/104/EEC of
                                                                           21 December 1988 to approximate the laws of the
                                                                           Member States relating to trade marks is to be
                                                                           interpreted as not precluding a prohibition on the
                JUDGMENT OF THE COURT                                      marketing of products coming from a Member State
                      of 26 November 1996                                  where they are lawfully marketed, on the ground that
in Case C-3 13/94 (reference for a preliminary ruling from                 they bear a trade mark which the proprietor has been
the Tribunale di Chiavari ): Fratelli Graffione SNC v. Ditta               specifically prohibited from using in the Member State
                              Fransa (')                                   of importation because it has been held there to be
                                                                           liable to mislead consumers .
 (Prohibition of the use of a trade mark in a Member State
— Prohibition of importation from another Member State
 of a product bearing the same trade mark — Article 30 of             n OJ No C 380 , 31 . 12 . 1994 .
          the EC Treaty and the Trade Mark Directive)
                           ( 97/C 40/03 )
                  (Language of the case: Italian)
   (Provisional translation; the definitive translation will be
                                                                                      JUDGMENT OF THE COURT
            published in the European Court Reports)
                                                                                              ( Sixth Chamber)
 In Case C-313 /94 : reference to the Court under Article 177
                                                                                            of 5 December 1996
 of the EC Treaty from the Tribunale di Chiavari (District
 Court, Chiavari ), Italy, for a preliminary ruling in the            in Case C-69/95 Italian Republic v. Commission of the
 proceedings pending before that court between Fratelli                                  European Communities (')
 Graffione SNC and Ditta Fransa — on the interpretation
 of Articles 30 and 36 of the EC Treaty and Article 12                 (EAGGF — Clearance of accounts — 1991 — Milk and
 (2 ) ( b ) of the First Council Directive 89/104/EEC of                                        milk products)
 21 December 1988 to approximate the laws of the                                                  97/C 40/04 )
 Member States relating to trade marks ( OJ No L 40, 11.2 .
  1989 , p. 1 ) — the Court, composed of: G. C. Rodriguez
 Iglesias, President, G. F. Mancini , J. C. Moitinho de                                (Language of the case: Italian)
 Almeida, J. L. Murray and L. Sevon (Presidents of
  Chambers ), P. J. G. Kapteyn, C. Gulmann ( Rapporteur ),
 D. A. O. Edward, J. -P. Puissochet, G. Hirsch and H.                    (Provisional translation; the definitive translation will be
  Ragnemalm, Judges; F. G. Jacobs, Advocate-General; H. A.                       published in the European Court Reports)
  Riihl, Principal Administrator, for the Registrar, has given
  a judgment on 26 November 1996 , in which it has ruled :             In Case C-69/95 : Italian Republic ( Agent: Umberto
  1 . Articles 30 and 36 of the EC Treaty are to be                    Leanza , assisted by Oscar Fiumara ) v. Commission of the
      interpreted as:                                                  FLuropean Communities ( Agent: Eugenio de March ) —
                                                                       application for partial annulment of Commission Decision
      — precluding reliance on protection against unfair                94/871 /EC of 21 December 1994 on the clearance of the
            competition as a ground for prohibiting an                  accounts presented by the Member States in respect of the
 ---pagebreak--- 8 . 2 . 97             EN                  Official Journal of the European Communities                                   No C 40 / 3
expenditure for 1991 of the European Agricultural                     other document serving as an invoice that fulfils the
Guidance and Guarantee Fund ( EAGGF ), Guarantee                      criteria determined by the Member States themselves, and
Section ( OJ No L 35,2, 31 . 12 . 1994, p. 82 ) — the Court           confer on them the power to require production of the
( Sixth Chamber ), composed of: J. L. Murray, President of            original invoice in order to establish the right to deduct
the Fourth Chamber, acting for the President of the Sixth             input tax, as well as the power, where a taxable person no
Chamber, P. J. G. Kapteyn ( Rapporteur ), G. Hirsch , H.              longer holds the original, to admit other evidence that the
Ragnemalm and R. Schintgen, Judges; D. Ruiz-Jarabo                    transaction in respect of which the deduction is claimed
Colomer, Advocate-General ; Fl . von Holstein , Deputy                actually took place.
Registrar, for the Registrar, has given a judgment on
5 December 1996 , in which it:                                        O OJ No C 137, 3 . 6 . 1995 .
1 . dismisses the action ;
2 . orders the Italian Republic to pay the costs.
(') OJ No C 137, 3 . 6 . 1995 .                                                     JUDGMENT OF THE COURT
                                                                                           of 5 December 1996
                                                                      in Joined Cases C-267/95 and C-268/95 ( references for a
                                                                      preliminary ruling from the High Court of Justice of
                                                                      England and Wales, Chancery Division, Patents Court ):
                                                                      Merck & Co . Inc. and Others v. Primecrown Ltd and
               JUDGMENT OF THE COURT
                                                                      Others and Beecham Group pic v. Europharm of Worthing
                      of 5 December 1996                                                            Ltd (')
in Case C-85/95 ( reference for a preliminary ruling from             (Act of Accession of Spain and Portugal — Interpretation
the Bundesfinanzhof): John Reisdorf v. Finanzamt Köln­                of Articles 47 and 209 — End of transitional period —
                              West (')                                Articles 30 and 36 of the EC Treaty — Parallel imports of
 (Value added tax — Interpretation of Article 18 (1 ) (a) of                           unpatentable pharmaceuticals)
the Sixth Council Directive 77/388/EEC — Deduction of
                                                                                                ( 97/C 40/06 )
input tax paid — Obligation of the taxable person —
                   Possession of an invoice)
                           ( 97/C 40/05 )
                                                                                      (Language of the case: English)
                (Language of the case: German)                        In Joined Cases C-267/95 and C-268/95 : references to the
                                                                      Court under Article 177 of the EC Treaty by the High
                                                                      Court of Justice of England and Wales, Chancery Division,
   (Provisional translation; the definitive translation will be       Patents Court, for a preliminary ruling in the proceedings
           published in the European Court Reports)                   pending before that court between Merck & Co . Inc .,
                                                                      Merck Sharp & Dohme Ltd, Merck Sharp & Dohme
 In Case C-85/95 : reference to the Court under Article 177           International Services BV and Primecrown Ltd, Ketan
 of the EC Treaty from the Bundesfinanzhof for a                      Himatlal Mehta , Bharat Himatlal Mehta, Necessity
 preliminary ruling in the proceedings pending before that             Supplies Ltd and between Beecham Group and Europharm
 court between John Reisdorf and Finanzamt Köln-West —                of Worthing Ltd — on the interpretation of Article 47 and
 on the interpretation of Article 18 ( 1 ) ( a ) of the Sixth         Article 209 of the Act concerning the Conditions of
 Council Directive 77/388/EEC of 17 May 1977 on the                   Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating               Republic and the adjustments to the Treaties ( OJ No
 to turnover taxes — Common system of value added tax :                L 302, 15 . 11 . 1985 , p. 23 ), and of Articles 30 and 36 of
 uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977,            the EC Treaty, the Court composed of : G. C. Rodriguez
 p. 1 ) — the Court ( Fifth Chamber ), composed of: J. C.              Iglesias, President, G. F. Mancini , J. L. Murray and L.
 Moitinho de Almeida ( Rapporteur ), President of the                  Sevón , Presidents of Chambers, C. N. Kakouris, C.
 Chamber, C. Gulmann, D. A. O. Edward, J. -P. Puissochet               Gulmann ( Rapporteur ), D. A. O. Edward, J. -P. Puissochet
 and P. Jann, Judges; N. Fennelly, Advocate-General ; H. A.            and H. Ragnemalm, Judges; N. Fennelly, Advocate-
 Rühl, Principal Administrator, for the Registrar, gave a              General ; L. Hewlett, Administrator, has given a judgment
 judgment on 5 December 1996 , the operative part of                   on 5 December 1996 , in which it rules :
 which is as follows :
                                                                       1 . The transitional periods provided for in Articles 47
 Article 18 (1 ) (a) and Article 22 (3) of the Sixth Council               and 209 of the Act concerning the Conditions of
 Directive 77/388/EEC of 17 May 1977 on the                                 Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating                    Republic and the Adjustments of the Treaties expired
  to turnover taxes — Common system of value added tax:                     on 6 October 1995 in the ease of the Kingdom of
  uniform basis of assessment permit the Member States to                   Spain and on 31 December 1994 in the case of the
  regard as an invoice not only the original but also any                   Portuguese Republic.