CELEX: C2000/006/25
Language: en
Date: 2000-01-08 00:00:00
Title: Case C-384/99: Action brought on 8 October 1999 by the Commission of the European Communities against the Kingdom of Belgium

8.1.2000               EN                       Official Journal of the European Communities                                          C 6/13
The appellant claims that the Court should:                                Service, acting as Agents, with an address for service in
                                                                           Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
(1) set aside the judgment delivered by the Court of First                 Centre, Kirchberg.
     Instance on 8 July 1999 in Case T-163/98 Procter &
     Gamble v Office for Harmonisation in the Internal Market
     (trade marks and designs), inasmuch as the Court of First             The Commission of the European Communities claims that
     Instance held that the First Board of Appeal of the Office            the Court should:
     for Harmonisation in the Internal Market (trade marks and
     designs) had not infringed Article 7(1)(c) of Regulation              — declare that, by failing correctly to transpose Article 5 of
     (EC) No 40/94 (1) by adopting its decision of 31 July 1998                Directive 97/33/EC (1) in conjunction with Annex I to that
     in Case R 35/1998-1;                                                      directive, and to adopt all the measures necessary in
                                                                               order to implement Article 5 of Directive 97/33/EC in
(2) order the Office for Harmonisation in the Internal Market                  conjunction with Annexes I and III to that directive, the
     (trade marks and designs) to pay the costs.                               Kingdom of Belgium has failed to fulfil its obligations
                                                                               under those provisions and under the Treaty establishing
                                                                               the European Community;
Pleas in law and main arguments
                                                                           — order the Kingdom of Belgium to pay the costs.
Infringement of Community law, in that, by the contested
judgment, the Court of First Instance applied an excessively
wide meaning to Article 7(1)(c) of Regulation No 40/94 on                  Pleas in law and main arguments
the Community trade mark: the Court of First Instance merely
found that the term ‘Baby-Dry’ simply contained, indications
which may serve in trade to designate the intended purpose of              Under the third paragraph of Article 249 and the first
the goods concerned, without determining the question wheth-               paragraph of Article 10 of the EC Treaty, together with Article
er that term is capable of distinguishing the goods concerned              23 of Directive 97/33/EC, Belgium was required to adopt, by
as being produced by a particular undertaking. On a proper                 no later than 31 December 1997, the measures necessary in
interpretation of the ground of nullity laid down in Article               order to comply with that directive. The Commission claims
7(1)(c), registration as an individual trade mark cannot be                that Belgium has failed to fulfil its obligations under Article 5
refused in respect of a sign the descriptive nature of which is            of the directive, in that it has:
such that it can only be understood as describing the product
concerned or one of its characteristics. That is the teleological          — extended the scope of services which may be financed in
or synthetic interpretation, excluding any presumption of                      respect of universal service to cover the provision of
unfitness for purpose which may affect descriptive signs,                      services at preferential rates in favour of the press media;
which has been upheld by leading case-law in various Member
States, such as the Benelux States, France and Germany, in                 — provided for a method of calculating the contributions of
which a trade mark right is not regarded as a monopoly right,                  operators to the financing of the net cost of universal
as is confirmed by, inter alia, the effect of First Council Directive          service which is incomplete and does not reflect the
88/104/EEC of 21 December 1988 to approximate the laws                         transparency obligations defined in Article 5(1) of Directive
of the Member States relating to trade marks (2).                              97/33/EC: the decree intended to specify the method of
                                                                               calculating the net cost of universal service and the
                                                                               method of calculating the basis on which operators are to
(1) OJ 1994 L 11, p. 1.
(2) OJ L 40 of 11.2.1989, p. 1.
                                                                               contribute to its financing has not yet been adopted and
                                                                               published; at all events, it has not been notified to the
                                                                               Commission;
                                                                           — provided for an incorrect method of calculating the net
                                                                               cost of universal service: in particular, this does not take
                                                                               into account the ‘intangible’ benefits linked to the provision
                                                                               of universal service (thus failing to comply with Article
Action brought on 8 October 1999 by the Commission                             5(4) of the directive); nor does it take into account all the
of the European Communities against the Kingdom of                             accounting principles laid down in Annex III to Directive
                              Belgium                                          97/33/EC: the concept of avoidable net cost, the taking
                                                                               into account of forecast, not historic, costs and receipts,
                                                                               the taking into account of direct and indirect receipts
                        (Case C-384/99)                                        inherent in the provision of each of the services financed
                                                                               in respect of universal service.
                          (2000/C 6/25)
                                                                           (1) OJ L 199 of 26.7.1997, p. 32.
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 8 October 1999 by the Commission of the European
Communities, represented by Barry Doherty, of its Legal