CELEX: C1999/188/21
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-114/99: Reference for a preliminary ruling by the Cour Administrative d'Appel (Administrative Appeal Court), Nancy (First Chamber), by judgment of that court of 25 March 1999 in the case of Roquette Frères SA against Office National Interprofessionnel des Céréales (O.N.I.C.)

3.7.1999              EN                       Official Journal of the European Communities                                          C 188/9
19 January 1999 received at the Court Registry on 1 April                 Reference for a preliminary ruling by the Verwaltungsger-
1999 for a preliminary ruling in the case of Toshiba Europe               ichtshof, Vienna, Austria, by order of that court of
GmbH against Katun Germany GmbH on the following                          17 March 1999 in the case of Dr Herta Schmid as
question:                                                                 insolvency administrator of the assets of the company
                                                                          P.P. Handels GmbH (in liquidation) against Finanzlandes-
                                                                             direktion für Wien, Niederösterreich und Burgenland
1. Is an advertisement by a supplier of replacement parts and
    user materials for an appliance manufacturer’s product to                                      (Case C-113/99)
    be regarded as comparative advertising within the meaning
    of Article 2(2a) of the directive if the advertisement states                                  (1999/C 188/20)
    the appliance manufacturer’s product numbers (OEM
    numbers) for the relevant original replacement parts                  Reference has been made to the Court of Justice of the
    and consumables for reference purposes to identify the                European Communities by order of the Verwaltungsgerichtsh-
    supplier’s products?                                                  of (Administrative Court), Vienna, Austria, of 17 March 1999,
                                                                          received at the Court Registry on 6 April 1999, for a
                                                                          preliminary ruling in the case of Dr Herta Schmid as insolvency
2. If Question 1 is to be answered in the affirmative:                    administrator of the assets of the company P.P. Handels
                                                                          GmbH (in liquidation) against Finanzlandesdirektion für Wien,
                                                                          Niederösterreich und Burgenland on the following question:
    (a) Does displaying the appliance manufacturer’s product              Does Article 10 of Council Directive 69/335/EEC of 17 July
        numbers (OEM numbers) alongside the supplier’s own                1969 concerning indirect taxes on the raising of capital (1)
        order numbers amount to a lawful comparison of the                preclude the levying for 1996 of the tax provided for
        goods under Article 3a(l)(c) of the directive, and in             by Paragraph 24(4) of the 1988 Körperschaftsteuergesetz
        particular a comparison of the prices?                            (Corporation Tax law) as amended by Federal law BGBl
                                                                          (Bundesgesetzblatt, Federal Law Gazette) No 680/1994?
    (b) Are the product numbers (OEM numbers) ‘dis-                       (1) OJ 1969 L 249, p. 25.
        tinguishing marks of a competitor’ within the meaning
        of Article3a(l)(g)?
3. If Question 2 is to be answered in the affirmative:                    Reference for a preliminary ruling by the Cour Adminis-
                                                                          trative d’Appel (Administrative Appeal Court), Nancy
                                                                          (First Chamber), by judgment of that court of 25 March
    (a) What are the criteria to be used when assessing                   1999 in the case of Roquette Frères SA against Office
        whether an advertisement within the meaning of                         National Interprofessionnel des Céréales (O.N.I.C.)
        Article 2(2a) takes unfair advantage of the reputation
        of a distinguishing mark of a competitor within the                                        (Case C-114/99)
        meaning of Article 3a(l)(g)?
                                                                                                   (1999/C 188/21)
                                                                          Reference has been made to the Court of Justice of the
    (b) Is the fact that the appliance manufacturer’s product             European Communities by judgment of the Cour Administrat-
        numbers (OEM numbers) appear alongside the sup-                   ive d’Appel, Nancy (First Chamber) of 25 March 1999, received
        plier’s own order numbers sufficient to justify an                at the Court Registry on 6 April 1999, for a preliminary
        allegation that unfair advantage is being taken of the            ruling in the case of Roquette Frères SA v Office National
        reputation of the distinguishing mark of a competitor             Interprofessionnel des Céréales (O.N.I.C.) on the following
        under Article 3a(1)(g), if the third party competitor             question:
        could instead in each case indicate the product for
        which the replacement part or consumable is suitable?             Did the provisions in force on 1 March 1990 and, in particular,
                                                                          Article 5(1) of Commission Regulation No 3665/87 of 27 Nov-
                                                                          ember 1987 (1), in so far as it provides that the export refund
                                                                          is to be paid only if ‘the product has been actually placed on
    (c) When assessing unfairness, is it relevant whether a               the market in the non-member country of import in the
        reference (solely) to the product for which the consum-           unaltered state’, permit the body responsible for supervision
        able or replacement part is suitable — in lieu of a               (in this instance, the O.N.I.C.) to challenge the supplier’s
        reference to the product number (OEM number) — is                 entitlement to refunds on the sole ground that the goods
        likely to make it difficult to sell the supplier’s products,      delivered had been used by its foreign customer in the
        particularly because customers generally take their               preparation of another product, which was itself liable to be
        bearings from the appliance manufacturer’s product                re-exported to other Member States of the European Economic
        numbers (OEM numbers)?                                            Community?
                                                                          (1) Laying down detailed rules for the application of the system of
                                                                              export refunds on agricultural products.