CELEX: C2000/247/30
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-245/00: Reference for a preliminary ruling by the Hoge Raad der Nederlanden, by judgment of that court of 9 June 2000, in the case of Stichting Ter Exploitatie Van Naburige Rechten (SENA) and Nederlandse Omroep Stichting (NOS)

C 247/22               EN                   Official Journal of the European Communities                                       26.8.2000
meaning of Article 7 of First Council Directive 89/104/EEC (1)               (e)   must the remuneration be related to the potential
of 21 December 1988 to approximate the laws of the Member                          numbers of listeners or viewers, or to actual num-
States relating to trade marks, has to adduce evidence and, in                     bers, or partly to the former and partly to the latter
appropriate cases, prove that the goods marketed by him have                       and, if so, in what proportion?
already been put on the market in the European Economic
Area for the first time by the trade-mark owner himself or
                                                                       (III) If the answer to Question I is in the negative, does that
with his consent?
                                                                             mean that the Member States are entirely free to lay down
                                                                             the yardsticks for determining equitable remuneration?
                                                                             Or is that freedom subject to certain limits and, if so,
(1) OJ L 40, p. 1.
                                                                             what are those limits?
                                                                       (1) OJ 1992, L 346, p. 61.
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden, by judgment of that court of 9 June 2000,
in the case of Stichting Ter Exploitatie Van Naburige
Rechten (SENA) and Nederlandse Omroep Stichting
                              (NOS)
                                                                       Action brought on 22 June 2000 by the Commission of
                                                                       the European Communities against the Hellenic Republic
                         (Case C-245/00)
                                                                                                 (Case C-249/00)
                         (2000/C 247/30)
                                                                                                 (2000/C 247/31)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 9 June               An action against the Hellenic Republic was brought before
2000, which was received at the Court Registry on 19 June              the Court of Justice of the European Communities on 22 June
2000, for a preliminary ruling in the case of Stichting Ter            2000 by the Commission of the European Communities,
Exploitatie Van Naburige Rechten (SENA) and Nederlandse                represented by Maria Patakia, of its Legal Service, and Enrico
Omroep Stichting (NOS), on the following questions:                    Traversa, Legal Adviser in its Legal Service, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
(I)  Is the term ‘equitable remuneration’ used in Article 8(2)         Cruz, of its Legal Service, Wagner Centre, Kirchberg.
     of Council directive 92/100/EEC(1) of 19 November
     1992 a Community concept which must be interpreted
     and applied in the same way in all the Member States of           The Commission claims that the Court should:
     the European Community?
                                                                       —     declare that, by reserving exclusively for Greek citizens
(II) If so,                                                                  the benefit of applying a reduced tax rate where real
                                                                             property is purchased with currency brought into Greece
     (a)    what are the yardsticks for determining the amount               from abroad, the Hellenic Republic has failed to fulfil its
            of such equitable remuneration?                                  obligations under Articles 12, 39, 43 and 56 EC;
     (b) should guidance be sought from the levels of                  —     order the Hellenic Republic to pay the costs.
            remuneration which were agreed or were customary
            as between the organisations concerned prior to
            entry into force of the directive in the relevant
            Member State?                                              Pleas in law and main arguments
     (c)    must or may regard be had to the expectations of           The Commission considers that Law No 1521/1950, as
            the persons concerned at the time of enactment of          amended by Law No 2459/1997, which maintains in force the
            the national legislation implementing the directive        advantage of applying a reduced tax rate so far as concerns
            in regard to the amount of remuneration?                   Greek nationals, discriminates on grounds of nationality,
                                                                       contrary to Articles 12, 39 and 43 EC (ex Articles 6, 48 and
     (d) should guidance be sought from the levels of                  52 of the Treaty). While the Commission respects the right of
            remuneration for broadcasts paid under music copy-         the Greek State to choose freely the system applied by it as
            right by broadcasters?                                     regards the tax on the transfer of real property, it also considers