CELEX: C2002/109/53
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-63/02: Action brought on 26 February 2002 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

4.5.2002               EN                     Official Journal of the European Communities                                        C 109/31
Action brought on 26 February 2002 by the Commission                     Appeal brought on 27 February 2002 by the Office for
of the European Communities against the United                           Harmonisation in the Internal Market (Trade Marks and
      Kingdom of Great Britain and Northern Ireland                      Designs) against the judgment delivered on 11 December
                                                                         2001 by the Fourth Chamber of the Court of First Instance
                                                                         of the European Communities in Case T-138/00 between
                           (Case C-63/02)                                Erpo Möbelwerke GmbH and the Office for Harmonis-
                                                                           ation in the Internal Market (Trade Marks and Designs)
                          (2002/C 109/53)
                                                                                                 (Case C-64/02 P)
An action against the United Kingdom of Great Britain and                                         (2002/C 109/54)
Northern Ireland was brought before the Court of Justice of
the European Communities on 26 February 2002 by the
Commission of the European Communities, represented by
Michael Shotter, acting as agent, with an address for service in
Luxembourg.                                                              An appeal against the judgment delivered on 11 December
                                                                         2001 by the Fourth Chamber of the Court of First Instance of
                                                                         the European Communities in Case T-138/00 between Erpo
                                                                         Möbelwerke GmbH and the Office for Harmonisation in the
The Applicant claims that the Court should:
                                                                         Internal Market (Trade Marks and Designs) (1) was brought
                                                                         before the Court of Justice of the European Communities on
—     declare that by failing to adopt for Northern Ireland              27 February 2002 by the Office for Harmonisation in the
      and Wales all the laws, regulations and administrative             Internal Market (Trade Marks and Designs), represented by
      provisions necessary to comply with Council Directive              Alexander von Mühlendahl, Vice-President of the Office, and
      98/83/EC of 3 November 1998 on the quality of water                Gregor Schneider, member of the Legal Services and Court
      intended for human consumption (1) or, in any event, by            Proceedings Unit of the Legal Department.
      failing to notify such provisions to the Commission, the
      United Kingdom of Great Britain and Northern Ireland
      has failed to fulfil its obligations under Article 17(1) and
      17(2) of this directive;                                           The appellant claims that the Court should:
—     order the United Kingdom to pay the costs.                         —     set aside the contested judgment;
                                                                         —     dismiss the action against the decision of the Third Board
                                                                               of Appeal of 23 March 2000 in Case R 392/1999-3, or
Pleas in law and main arguments                                                alternatively refer the proceedings back to the Court of
                                                                               First Instance;
Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by            —     order the other party to the proceedings to pay the costs
implication an obligation on the Member States to observe the                  both of the proceedings at first instance and of the appeal
period for compliance laid down in the directive. That period                  proceedings.
expired on 25 December 2000 without the United Kingdom
having informed the Commission of the provisions adopted to
comply with the directive referred to in the conclusions of the
Commission as regards Wales and Northern Ireland.
                                                                         Pleas in law and main arguments
Since the Commission is in possession of no other information
enabling it to conclude that the United Kingdom has adopted
the necessary provisions, it is compelled to assume that the             Infringement of Article 7(1)(b) of Council Regulation
UK has failed to fulfil its obligations under the directive.             No 40/94 (2): the Court of First Instance applied a new
                                                                         examination criterion in the contested judgment. The Office
                                                                         considers that to limit the possibility of refusing a trade mark
                                                                         application to cases in which general use amongst the class of
(1) OJ L 330, 05.12.1998, p. 32.                                         persons concerned is proved constitutes a legally erroneous
                                                                         interpretation of Article 7(1)(b). If it were possible to refuse an
                                                                         application for a trade mark only if that mark, or at all events
                                                                         signs portrayed in the same way, were shown to be already