CELEX: C2002/219/10
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-259/02: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 17 June 2002, in the case of La Mer Technology Inc. against Laboratoires Goemar S.A.

C 219/6               EN                    Official Journal of the European Communities                                     14.9.2002
Reference for a preliminary ruling by the Tribunale                          legislation, subjecting undertakings active on the Italian
Amministrativo Regionale per il Lazio by judgment of                         market to conditions more oppressive than those pro-
that Court of 23 January 2002 in the cases of Telecom                        vided for by those provisions of Community law in the
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom                       other States of the Union?
(C-251/02), Telecom Italia SpA, intervener: Telemar
(C-252/02), Omnitel Pronto Italia SpA (C-253/02), and
WIND Telecomunicazioni SpA (C-256/02) against Mini-                    (1 ) OJ L 117 of 7.5.1997, p. 15.
stero del Tesoro, del Bilancio e della Programmazione
Econimica (now Ministero dell’ Economia e delle Finanze)
              and Ministero delle Comunicazioni
(Cases C-250/02, C-251/02, C-252/02, C-253/02 and C-256/
                               02)
                        (2002/C 219/09)                                Reference for a preliminary ruling by the High Court of
                                                                       Justice (England & Wales), Chancery Division, by order
                                                                       of that court dated 17 June 2002, in the case of La Mer
                                                                            Technology Inc. against Laboratoires Goemar S.A.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-                                      (Case C-259/02)
tivo Regionale per il Lazio (Regional Administrative Court for
Lazio) of 23 January 2002, received at the Court Registry on
                                                                                                (2002/C 219/10)
10 July 2002, for a preliminary ruling in the cases of Telecom
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom
(C-251/02), Telecom Italia SpA, intervener: Telemar (C-252/
02), Omnitel Pronto Italia SpA (C-253/02), and WIND Teleco-
municazioni SpA (C-256/02) against Ministero del Tesoro, del
                                                                       Reference has been made to the Court of Justice of the
Bilancio e della Programmazione Econimica (now Ministero
                                                                       European Communities by an order of the High Court of
dell’ Economia e delle Finanze) and Ministero delle Comunica-
                                                                       Justice (England & Wales), Chancery Division, dated 17 June
zioni (Ministry of the Treasury, Budget and Economic Planning
                                                                       2002, which was received at the Court Registry on 15 July
(now Ministry of Economy and Finance) and Ministry of
                                                                       2002, for a preliminary ruling in the case of La Mer Technology
Communications) on the following questions:
                                                                       Inc. and Laboratoires Goemar S.A. on the following questions:
1)    Do Articles 6 and 11 of Directive 97/13/EC (1) of the            1.    What factors should be taken into account when deciding
      European Parliament and of the Council of 10 April 1997                whether a mark has been ‘put to genuine use’ in a Member
      on a common framework for general authorizations and                   State within the meaning of Articles 10(1) and 12(1) of
      individual licences in the field of telecommunications                 the First Council Directive 89/104 ( 1) of 21 December
      services permit Member States to require only those                    1988?
      undertakings which hold a licence or authorisation to
      carry on telecommunications activities to make financial
      payments, whatever they may be called, other than and            In particular:
      in addition to those provided for by that Directive, and
      are such payments in keeping with the principle of non-
      discrimination?                                                  2.    Should the extent of use of the mark in relation to the
                                                                             goods or services for which the mark is registered in the
                                                                             Member State be taken into account?
2)    Do Articles 6 and 11 of Directive 97/13/EC permit
      Member States to introduce direct or indirect taxes or
      other charges of a fiscal nature on activities consisting        3.    Is any amount of use however small, sufficient if it was
      of installing and supplying public telecommunications                  made with no purpose other than commercially dealing
      networks, the supply to the public of voice telephony                  in the goods or providing the service concerned?
      services and mobile and personal communication ser-
      vices, determined in variable percentage terms and having        4.    If the answer to the foregoing question is ‘no’ what is the
      equivalent effect to those prohibited by the Community                 test for determining how much use is sufficient, and in
      legislation?                                                           particular does that test include a consideration of nature
                                                                             and size of the business of the registered proprietor?
3)    May Articles 2, 3 and 95 of the Treaty and Article 12 of
      Directive 97/13/EC be interpreted to mean that it is not         5.    Is token or sham use to be disregarded, and in particular
      permissible for the Member States to introduce financial               is use whose sole or predominant purpose is defeating a
      charges contrary to the provisions of the harmonising                  potential claim for revocation to be disregarded?
 ---pagebreak--- 14.9.2002               EN                   Official Journal of the European Communities                                       C 219/7
6.     What types of use can be considered, and in particular is        Pleas in law and main arguments
       it necessary to show that the mark has been used in the
       course of trade in the Member State concerned and in
       further particular would importation by a single customer        Article 249 EC, which provides that a directive is to be binding
       into that Member State be sufficient?                            as to the result to be achieved upon each Member State,
                                                                        implies the obligation upon each Member State to observe the
                                                                        time-limits for implementation laid down in directives. That
7.     Is it necessary to disregard use occurring after the filing      time-limit expired on 24 October 1998 without the Italian
       of the application for revocation even for the purpose of        Republic having issued the provisions necessary to comply
       testing whether use during the relevant period was               with Article 5 of the directive referred to in the Commission’s
       genuine?                                                         claims.
                                                                        (1 ) OJ 1998 L 24, p. 1.
( 1) To approximate the laws of the Member States relating to trade
     marks (OJ L 40, 11.2.1989, p. 1).
                                                                        Action brought on 23 July 2002 by the Commission of
                                                                        the European Communities against the Grand Duchy of
                                                                                                   Luxembourg
                                                                                                 (Case C-268/02)
Action brought on 19 July 2002 by the Commission of                                              (2002/C 219/12)
   the European Communities against the Italian Republic
                                                                        An action against the Grand Duchy of Luxembourg was
                          (Case C-267/02)                               brought before the Court of Justice of the European Communi-
                                                                        ties on 23 July 2002 by the Commission of the European
                                                                        Communities, represented by D. Martin, acting as Agent.
                          (2002/C 219/11)
                                                                        The applicant claims that the Court should:
                                                                        —     Declare that, by failing to adopt and bring into force
                                                                              within the prescribed period the laws, regulations and
                                                                              administrative provisions necessary to comply with
An action against the Italian Republic was brought before the                 Council Directive 98/24/EC of 7 April 1998 on the
Court of Justice of the European Communities on 19 July                       protection of the health and safety of workers from the
2002 by the Commission of the European Communities,                           risks related to chemical agents at work (fourteenth
represented by M. Shotter and C. Loggi, acting as Agents.                     individual Directive within the meaning of Article 16(1)
                                                                              of Directive 89/391/EEC) ( 1), the Grand Duchy of Luxem-
                                                                              bourg has failed to fulfil its obligations under that
                                                                              directive; and
The applicant claims that the Court should:
                                                                        —     Order the Grand Duchy of Luxembourg to pay the costs.
1.     Declare that, by not adopting within the prescribed time-
       limit, or in any event not notifying the laws, regulations
       and administrative provisions necessary to comply with           Pleas in law and main arguments
       Article 5 of Directive 97/66/EC ( 1) of the European
       Parliament and of the Council of 15 December 1997
       concerning the processing of personal data and the               The period prescribed for transposition expired on 5 May
       protection of privacy in the telecommunications sector,          2001.
       the Italian Republic has failed to fulfil its obligations
       under Articles 5 and 15 of that directive;
                                                                        (1 ) OJ 1998 L 131, p. 11.
2.     Order the Italian Republic to pay the costs.