CELEX: C2002/084/68
Language: en
Date: 2002-04-06 00:00:00
Title: Case C-455/01: Action brought on 27 November 2001 by the Commission of the European Communities against the Italian Republic

6.4.2002                EN                    Official Journal of the European Communities                                         C 84/39
       (ii) assignable                                                   Action brought on 27 November 2001 by the Com-
                                                                         mission of the European Communities against the Italian
       before they can be described a ‘goods’ that fall within the                                      Republic
       provisions of 1993 Regulations and/or in the Directive?
                                                                                                   (Case C-455/01)
                                                                                                    (2002/C 84/68)
Reference for a preliminary ruling by the Verwaltungs-
gerichtshof (Austria) by order of 19 October 2001 in the
case of 1. Margarete Ospelt, 2. Schlössle Weissenberg                    An action against the Italian Republic was brought before
Familienstiftung v Unabhängiger Verwaltungssenat des                     Court of Justice on 27 November 2001 by the Commission of
                        Landes Vorarlberg                                the European Communities, represented by Richard B. Wain-
                                                                         wright and Roberto Amorosi, acting as Agents.
                         (Case C-452/01)
                          (2002/C 84/67)                                 The applicant claims that the Court of Justice should:
                                                                         —     Declare that, by keeping in force legislation under which
Reference has been made to the Court of Justice of the                         products in respect of which there has not yet been full
European Communities by order of 19 October 2001 by the                        harmonisation, intended for use on merchant vessels
Verwaltungsgerichtshof (Higher Administrative Court, Aus-                      flying the Italian flag, may be marketed only if a certificate
tria), which was received at the Court Registry on 22 November                 of conformity has been issued by a national body — so
2001, for a preliminary ruling in the case of 1. Margarete                     that in some cases the right to market the products is
Ospelt, 2. Schlössle Weissenberg Familienstiftung v Unabhän-                   enjoyed only by the grantee of the certificate — and by
giger Verwaltungssenat des Landes Vorarlberg on the following                  not recognising the validity of tests carried out in
questions:                                                                     accordance with international standards by bodies
                                                                               officially recognised in the other Member States or States
1.     Are Article 12 EC (ex Article 6 of the EC Treaty) and                   signatory to the EEA Agreement, even where the relevant
       Article 56 EC et seq. (ex Article 73b et seq. of the EC                 information is made available to the competent authority
       Treaty) to be interpreted as meaning that rules whereby                 and it is clear from the certificates that the equipment
       transactions in agricultural and forestry plots are subject             guarantees an equivalent degree of safety, the Italian
       to restrictions imposed by the administrative authorities               Republic has failed to fulfil its obligations under
       in the public interest of preserving, strengthening or                  Articles 28 and 30 of the Treaty;
       creating a viable farming community are also permitted
       in relation to Member States of the EEA as ‘third countries’      —     Order the Italian Republic to pay the costs.
       under Article 56(1) EC (ex Article 73b of the EC Treaty)
       having regard to the fundamental freedoms guaranteed
       by an applicable law of the European Union, in particular
       the free movement of capital?
                                                                         Pleas and principal arguments
2.     In the event that the first question is answered in the
       affirmative:
       Are Article 12 EC (ex Article 6 of the EC Treaty) and
                                                                         The slavish application — when not justified by overriding
       Article 56 EC et seq. (ex Article 73b et seq. of the EC
                                                                         requirements — to goods lawfully produced and marketed in
       Treaty) to be interpreted as meaning that the fact that the
                                                                         other Member States of rules laid down for domestically
       appellant must, in the case of transfers of agricultural and
                                                                         produced goods, and in particular the refusal to take account,
       forestry plots, undergo an ‘authorisation procedure’ even
                                                                         for the purposes of issuing ‘type approval declarations’, of
       before the property right is entered in the land register,
                                                                         certificates accompanying such goods, even where they contain
       pursuant to the (Voralberg) Gesetz über den Verkehr mit
                                                                         the information needed to assess how safe they are, undoubt-
       Grundstücken (Land Transfer Law — VGVG 1993)
                                                                         edly constitutes a measure having an effect equivalent to a
       published in Voralberg LGBl. No 61/1993, entails an
                                                                         quantitative restriction on imports which is liable to hinder
       infringement of Community law and of one of the
                                                                         intra-Community trade.
       appellant’s fundamental freedoms guaranteed by the law
       of the European Union, which is also applicable to
       Member States of the EEA as ‘third countries’ under
       Article 56(1) EC (ex Article 73b of the EC Treaty)?               The foregoing is common ground. At issue is the measure
                                                                         adopted by the Italian State in order to adjust its domestic
                                                                         legislation to the principles laid down in Community law once
 ---pagebreak--- C 84/40                EN                  Official Journal of the European Communities                                        6.4.2002
such legislation has been found to be non-compliant. It is            Pleas in law and main arguments
untenable to think that service order No 57/2000 of 4 August
2000 issued by the authority governing harbourmasters is
capable of amending Decree No 347/94 containing the                   Infringement of Article 7(1)(b) of Council Regulation No 40/94
contested provisions.                                                 on the Community trade mark (2). Contrary to the view of the
                                                                      Court of First Instance, the mark applied for lacks distinctive
                                                                      character. At the time of the application, neither the tablet
                                                                      shape nor the colour combination, and especially the combi-
In the Commission’s view, the Italian authorities are well aware
                                                                      nation of the two, were typical for a washing powder and they
of the above considerations, as is clear from the undertaking
                                                                      were certainly not technically necessary.
given several times — but so far not fulfilled — to make the
necessary amendments to Presidential Decree No 347/94 in
order to bring Italian legislation into line with Community
law.                                                                  Contrary to the view taken by the Court of First Instance, there
                                                                      is no reason why consumers should in principle be regarded
                                                                      as less attentive when purchasing goods for everyday use;
                                                                      rather, the opposite is true.
                                                                      In the alternative: even if the time of registration were decisive,
                                                                      the possibility cannot be ruled out that the contested trade
                                                                      mark application could serve to designate the origin of the
                                                                      goods, since it is prohibited, when considering the list of
                                                                      goods, to rule out distinctiveness on the grounds that there
Appeal brought on 28 November 2001 by Henkel KGaA                     may be similarities between the goods. That approach conflates
against the judgment delivered on 19 September 2001 by                to an unacceptable degree the issue of registrability with that
the Second Chamber of the Court of First Instance of                  of scope of protection, or likelihood of confusion. Even where
the European Communities in Case T-335/99, between                    a mark is confusingly similar, it is for the proprietor of the
Henkel KGaA and the Office for Harmonization in the                   mark having priority to obtain refusal of the earlier mark
         Internal Market (Trade Marks and Designs)                    under Article 8 of Regulation 40/94.
                        (Case C-456/01 P)
                                                                      (1) Not yet published in the court reports.
                                                                      (2) OJ L 11, p. 1.
                          (2002/C 84/69)
An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-335/99, between Henkel
                                                                      Appeal brought on 28 November 2001 by Henkel KGaA
KGaA and the Office for Harmonization in the Internal Market
                                                                      against the judgment delivered on 19 September 2001 by
(Trade Marks and Designs) (1), was brought before the Court of
                                                                      the Second Chamber of the Court of First Instance of
Justice of the European Communities on 28 November
                                                                      the European Communities in Case T-336/99, between
2001 by Henkel KGaA, represented by Rechtsanwälte Holger
                                                                      Henkel KGaA and the Office for Harmonization in the
Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
                                                                               Internal Market (Trade Marks and Designs)
an address for service in Luxembourg.
                                                                                              (Case C-457/01 P)
The applicant claims that the Court should:
                                                                                                (2002/C 84/70)
—     partially annul the judgment of the Court of First Instance
      of the European Communities of 19 September 2001 in
      Case T-335/999, served on 1 October 2001;
                                                                      An appeal against the judgment delivered on 19 September
      annul the decision of the Third Board of Appeal of the          2001 by the Second Chamber of the Court of First Instance of
      Office for Harmonisation in the Internal Market of              the European Communities in Case T-335/99, between Henkel
      21 September 1999 in Case R 71/1999-3 relating to               KGaA and the Office for Harmonization in the Internal Market
      Community trade mark application number 703 231;                (Trade Marks and Designs) (1), was brought before the Court of
                                                                      Justice of the European Communities on 28 November
                                                                      2001 by Henkel KGaA, represented by Rechtsanwälte Holger
—     order the Office for Harmonisation in the Internal Market       Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
      to pay the costs of the proceedings.                            an address for service in Luxembourg.