CELEX: C1997/108/29
Language: en
Date: 1997-04-05 00:00:00
Title: Reference for a preliminary ruling by the 1º Juízo Cível da Comarca de Lisboa by order of that court of 29 January 1997 in the case of Banco de Fomento e Exterior, SA, against CTV - Confecções Têxteis de Vouzela, Lda., Amândio Maurício Martins Pechim and Maria de Luz Lima Barros Raposo Pechim (Case C-66/97)

5 . 4 . 97                        EN                  Official Journal of the European Communities                                   No C 108/ 15
        purpose of the case described in Article 5 (4 ), are                          to an appreciable extent for the purpose of advertising
        Member States otherwise free to lay down rules on the                         his own business as such by creating a specific
        matter, or does Community law in general, or the                              suggestion of quality ?
        objective and tenor of Directive 89/104/EEC in
        particular, have the effect that Member States are not                   (') OJ No L 40 , 11 . 2 . 1989, p . 1 .
        entirely free in that regard but must comply with
        specific restrictions, and if so which ?
( b ) If someone, without the authorization of the trade                         Action brought on 14 February 1997 by the Commission
        mark proprietor, makes use of that proprietor's trade                    of the European Communities against the Italian Republic
        mark, registered exclusively for specified goods, for                                               ( Case C-64/97)
        the purpose of announcing to the public that he (A )
        carries out repair and maintenance work on the goods                                                  ( 97/C 108/28 )
        which have been placed on the market under that
        trade mark by the proprietor or with his consent, or                     An action against the Italian Republic was brought before
         that he ( B ) is a specialist or is specialized with regard             the Court of Justice of the European Communities on
        to such goods, does this, under the scheme of Article 5                  14 February 1997 by the Commission of the European
         of the Directive, involve :                                             Communities, represented by Paolo Stancanelli, of its
                                                                                 Legal Service, acting as Agents, with an address for service
         (i)       use of the trade mark in relation to goods which              in Luxembourg at the office of Carlos Gomez de la Cruz,
                   are identical to those for which it was registered,           Wagner Centre, Kirchberg.
                   as referred to in Article 5 ( 1 ) ( a );                      The applicant claims that the Court should:
                                                                                 — declare that, by failing to adopt the laws, regulations
         ( ii ) use of that trade mark in relation to services
                   which must be deemed to constitute use of the
                                                                                      or administrative provisions necessary to comply with
                                                                                      Council Directive 93/95/EEC of 29 October 1993
                   trade mark within the meaning of Article 5 ( 1 ) ( a )
                   or use of the trade mark as referred to in Article 5               amending Directive 89/686/EEC on the approximation
                                                                                      of the laws of the Member States relating to personal
                   ( 1 ) ( b ), on the assumption that it can be stated
                                                                                      protective equipment ( PPE ) ( 1 ), the Italian Republic
                   that there is an identity between those services
                                                                                      has failed to fulfil its obligations under the EC Treaty;
                   and the goods for which the trade mark was
                   registered;                                                   — order the Italian Republic to pay the costs.
                                                                                 Pleas in law and main arguments adduced in support:
         ( iii ) use of the trade mark as referred to in Article 5
                   (2 ; or                                                       Under Article 189 of the EC Treaty, according to which a
                                                                                 directive is to be binding, as to the result to be achieved,
          ( iv ) use of the trade mark as referred to in Article 5                upon each Member State to which it is addressed,
                    ( 5 )?                                                        Member States are required to observe the time-limits laid
                                                                                  down in directives for their transposition . That time-limit
                                                                                  expired on 29 January 1994 without the Italian Republic
 (c ) For the purpose of answering Question ( b ), does it                        having brought into force the necessary provisions in
          make any difference whether announcement ( A) or                        order to comply with the Directive referred to in the
          announcement ( B ) is involved ?                                        Commission 's application.
                                                                                  O OJ No L 276 , 9 . 11 . 1993 , p . 11 .
  ( d ) In the light of the provision in Article 7 of the
          Directive, does it make any difference, with regard to
          the question whether the proprietor of the trade mark
          can prevent use of his trade mark registered
          exclusively for specified goods, whether the use                        Reference for a preliminary ruling by the 1 ? Juizo Civel da
          referred to in Question ( b) is that under points ( i ), ( ii ),        Comarca de Lisboa by order of that court of 29 January
           ( iii ) or ( iv )?                                                     1997 in the case of Banco de Fomento e Exterior, SA,
                                                                                  against CTV — Confec^oes Texteis de Vouzela, Lda.,
                                                                                  Amandio Mauricio Martins Pechim and Maria de Luz
   ( e ) On the assumption that both or one of the cases                                           Lima Barros Raposo Pechim
           described at the start of Question ( b ) involve the use
                                                                                                              ( Case C-66/97)
           of the proprietor's trade mark within the meaning of
           Article 5 ( 1 ), whether under Article 5 ( 1 ) ( a ) or ( b ),                                       ( 97/C 108/29
           can the proprietor prevent that use only where the
           person thus using the trade mark thereby creates the                    Reference has been made to the Court of Justice of the
           impression that his undertaking is affiliated to the                    European Communities by order of the 1 ? Juizo Civel da
           trade-mark proprietor's network, or can he also                         Comarca de Lisboa ( Civil Court No 1 , Lisbon ) of
            prevent that use where there is a good chance that the                 29 January 1997, which was received at the Court
            manner in which the trade mark is used for those                       Registry on 17 February 1997, for a preliminary ruling in
            announcements may create an impression among the                       the case of Banco de Fomento e Exterior, SA, against CTV
            public that the trade mark is in that regard being used                — Confeccoes         Texteis       de  Vouzela, Lda ., Amandio
 ---pagebreak--- No C 108/ 16           EN                  Official Journal of the European Communities                                              5 . 4 . 97
Maurício Martins Pechim and Maria da Luz Lima Barros                        beekeeping constitutes one of the few forms of gainful
Raposo Pechim on the following questions:                                   activity by reason of the island's special flora and high
                                                                            proportion of uncultivated and extensively used land ?
(a ) Must the BFE ( Banco de Fomento e Exterior, SA) be
      regarded as an 'undertaking' and in particular 'a               2 . If a Member State can introduce such rules, the Court
      public undertaking', within the meaning of Articles 90                is requested to describe in general the conditions
      and 92 of the Treaty of Rome ?                                        governing those rules and in particular to answer the
                                                                            following questions:
( b ) May the advantage which the BFE enjoys over its
      competitors be interpreted as being 'State aid' within                ( a ) Can a Member State introduce such rules as
      the meaning of Article 92 of the Treaty of Rome ?                             described in 1 on the ground that the rules concern
                                                                                    solely such an island as described and that the
(c ) Must such advantages be taken to be restrictions to                            effect of the rules is therefore geographically
      the freedom to provide services within the                                    limited ?
      Community, within the meaning of Article 59 of the
      Treaty of Rome ?                                                    . ( b) Can a Member State introduce such rules as
                                                                                    described in 1 if the reason for those rules lies in
( d ) Do Articles 59, 90 ( 1 ), and 92 ( 1 ) of the Treaty of                       the desire to protect the bee species Apis mellifera
      Rome have direct effect and may they be relied upon                           mellifera against eradication, an objective which,
      in the present proceedings ?                                                  in the Member State 's opinion, can be attained by
                                                                                    excluding all other bee species from the island in
( e ) Do the rules of the Treaty of Rome take precedence                            question ?
      over and negate any conflicting national law ?
                                                                                    In the criminal proceedings underlying this order
                                                                                    for reference, the accused:
                                                                                    (i)      disputes that there is at all any such bee
                                                                                             species as Apis mellifera mellifera and submits
                                                                                             that the bees at present to be found on Laeso
Reference for a preliminary ruling by the Kriminalret,                                       are a mixture of different bee species;
Frederikshavn, by letter of 14 February 1997 in the case
           of the Anklagemyndighed v. Ditlev Bluhme                                 ( ii ) submits that the brown bees to be found on
                         ( Case C-67/97)                                                     Laes0 are not unique but are found in many
                                                                                             parts of the world; and
                           ( 97/C 108/30 )
                                                                                     ( iii ) submits that those bees are not threatened
                                                                                             with eradication .
 Reference has been made to the Court of Justice of the
 European Communities by letter of 14 February 1997
 from the Kriminalret ( Criminal Court), Fredrikshavn,                              In its response, the Court is therefore requested to
 which was received at the Court of Registry on                                      indicate whether it is sufficient that the Member
  17 February 1997, for a preliminary ruling in the case of                          State in question considers it appropriate or
 the Anklagemyndighed (Public Prosecution Department) v.                             necessary to introduce the rules as a step in
 Ditlev Bluhme on the following questions :                                          preserving the bee population in question, or
                                                                                     whether it must be regarded as a further condition
                                  I                                                  that the bee species exists, and/or that it is unique,
                                                                                     and/or that it is threatened with eradication if the
                                                                                     import ban is not valid or cannot be enforced.
  Concerning the interpretation of Article 30 of the EC
  Treaty
                                                                              ( c ) If the grounds set out in points ( a ) or ( b ) cannot
                                                                                      make it lawful to introduce such rules, can a
  1 . Can Article 30 be interpreted as meaning that a                                 combination of those grounds make it so lawful ?
       Member State may, under certain circumstances,
       introduce rules prohibiting the keeping — and
       consequently the importation — of all bees other than                                                  II
       bees belonging to the species Apis mellifera mellifera
       (brown Laeso bee ) with regard to a specific island in          Concerning Council Directive 91 /174/EEC of 25 March
       the country in question, for example, an island of              1991 laying down zootechnical and pedigree requirements
       114 km2, one half of which consists of country villages         for the marketing of pure-bred animals and amending
       and small ports, and is used for purposes of tourism or         Directives 77/504/EEC and 90/425/EEC (').
       agriculture, while the other half consists of
       uncultivated land, that is to say, plantations,
       moorland, meadows, tidal meadows, beaches and                   1 . Under what circumstances can a bee be a pure-bred
       dunes, which had on 1 January 1997 a population of                      animal within the meaning attached to those words by
       2 365 , and which is an island on which opportunities                   Article 2 of Directive 91/174/EEC ? Is a golden bee, for
       for gainful activity are in general limited but where                   example, a pure-bred animal ?