CELEX: C1997/040/02
Language: en
Date: 1997-02-08 00:00:00
Title: JUDGMENT OF THE COURT of 19 November 1996 in Case C-42/95 (reference for a preliminary ruling from the Bundesgerichtshof): Siemens AG v. Henry Nold (Company law - Increase in capital - Consideration in kind - Shareholders' right of pre-emption - Withdrawal)

8 . 2 . 97           I EN                  Official Journal of the European Communities                                    No C 40/ 1
                                                                   I
                                                            (Information)
                                              COURT OF JUSTICE
                                                         COURT OF JUSTICE
                JUDGMENT OF THE COURT                                 2 . For the rest, the appeal is dismissed.
                         (First Chamber)                              3 . The action, in so far as it is based on an infringement
                     of 12 November 1996                                   of Article 26 of the Staff Regulations, is dismissed.
in Case C-294/95 P Girish Ojha v. Commission of the                   4 . The costs are to be borne as to two thirds by Mr Ojha
                   European Communities H                                  and as to one third by the Commission.
(Appeal — Official — Posting outside the Community —                  (') OJ No C 286 , 28 . 10 . 1995 .
Transfer in the interests of the service — Action for
   annulment — Compensation for non-material damage)
                           ( 97/C 40/01 )
                                                                                     JUDGMENT OF THE COURT
                 (Language of the case: French)
                                                                                          of 19 November 1996
                                                                      in Case C-42/95 ( reference for a preliminary ruling from
  (Provisional translation; the definitive translation will be           the Bundesgerichtshof): Siemens AG v. Henry Nold (')
           published in the European Court Reports)                   (Company law — Increase in capital — Consideration in
                                                                      kind — Shareholders ' right of pre-emption — Withdrawal)
In Case C-294/95 P: Girish Ojha, an official of the                                               ( 97/C 40/02 )
European Communities, represented by E. H. Pijnacker                                  (Language of the case: German)
Hordijk, of the Amsterdam Bar, with an address for
service in Luxembourg at the Chambers of L. Frieden,                    (Provisional translation; the definitive translation will be
62 Avenue Guillaume, the other party to the proceedings                         published in the European Court Reports)
being: Commission of the European Communities (Agent:
A. M. Alves Vieira , assisted by D. Waelbroeck, of the                In case C-42/95 : reference to the Court under Article 177
Brussels Bar ) — appeal against the judgment of the Court             of the EC Treaty from the Bundesgerichtshof ( Federal
of First Instance ( First Chamber) of 6 July 1995 in Case T­          Court of Justice ) for a preliminary ruling in the
36/93 Ojha v. Commission ( 1995 ) ECR 11-497, seeking to              proceedings pending before that court between Siemens
have that judgment set aside — the Court ( First                      AG and Henry Nold — on the interpretation of the
Chamber ), composed of: D. A. O. Edward, acting as                    Second Council Directive ( 77/91 /EEC ) of 13 December
President of the Chamber, P. Jann and M. Wathelet                     1976 on coordination of safeguards which, for the
( Rapporteur), Judges; P. Leger, Advocate-General; L.                 protection of the interests of members and others, are
Hewlett, Administrator, for the Registrar, has given a                required by Member States of companies within the
judgment on 12 November 1996, in which it has ruled:                  meaning of the second paragraph of Article 58 of the
                                                                      Treaty, in respect of the formation of public limited
                                                                      liability companies and the maintenance and alteration of
1 . The judgment of the Court of First Instance of 6 July             their capital, with a view to making such safeguards
      1995 in Case T-36/93 Ojha v. Commission is set aside            equivalent ( OJ No L 26 , 30 . 1 . 1977, p. 1 ), in particular
     in so far as it holds that Article 26 of the Staff               Article 29 ( 1 ) and ( 4 ) thereof — the Court, composed of:
     Regulations of Officials of the European Communities             G. C. Rodriguez Iglesias, President, G. F. Mancini , J. C.
     was not applicable and that no infringement of the               Moitinho de Almeida and J. L. Murray ( Presidents of
     second paragraph of Article 26 of the Staff                      Chambers ), P. J. G. Kapteyn ( Rapporteur), C. Gulmann,
     Regulations could be found.                                      D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P. Jann and
 ---pagebreak--- No C 40/2            [ EN |                Official Journal of the European Communities                                       8 . 2 . 97
H. Ragnemalm, Judges; G. Tesauro, Advocate-General; H.                         undertaking from using its right to import into a
von Holstein, Deputy Registrar, for the Registrar, has                         Member State products coming from another
given a judgment on 19 November 1996 , in which it has                         Member State where they are lawfully marketed
ruled :                                                                        and to market them under a particular trade mark
                                                                               in the Member State of importation, when other
The Second Council Directive (77/91 /EEC) of                                   traders have the same right, even if they do not use
13 December 1976 on coordination of safeguards which,                          it,
for the protection of the interests of members and others,
are required by Member States of companies within the
                                                                           — but not precluding a prohibition, on grounds of
meaning of the second paragraph of Article 58 of the
                                                                               consumer protection, on the marketing by all
Treaty, in respect of the formation of public limited                          traders of products coming from a Member State
liability companies and the maintenance and alteration of
                                                                               where they are lawfully marketed, provided that
their capital, with a view to making such safeguards                           the prohibition is necessary in order to ensure
equivalent, in particular Article 29 ( 1 ) and (4) thereof,                    consumer protection and proportionate to that
does not preclude a Member State 's domestic law from                          objective, which must be incapable of being
granting a right of pre-emption to shareholders in the                         achieved by measures which are less restrictive of
event of an increase in capital by consideration in kind                       intra- Community trade . The national court must,
and from subjecting the legality of a decision withdrawing                     in particular, examine whether the risk of
that right of pre-emption to a substantive review of the                       misleading consumers is sufficiently serious to be
kind laid down by the Bundesgerichtshof.                                       able to override the requirements of the free
                                                                               movement of goods .
H OJ No C 101 , 22 . 4 . 1995 .
                                                                      2 . Article 12 (2) (b) of Council Directive 89/104/EEC of
                                                                           21 December 1988 to approximate the laws of the
                                                                           Member States relating to trade marks is to be
                                                                           interpreted as not precluding a prohibition on the
                JUDGMENT OF THE COURT                                      marketing of products coming from a Member State
                      of 26 November 1996                                  where they are lawfully marketed, on the ground that
in Case C-3 13/94 (reference for a preliminary ruling from                 they bear a trade mark which the proprietor has been
the Tribunale di Chiavari ): Fratelli Graffione SNC v. Ditta               specifically prohibited from using in the Member State
                              Fransa (')                                   of importation because it has been held there to be
                                                                           liable to mislead consumers .
 (Prohibition of the use of a trade mark in a Member State
— Prohibition of importation from another Member State
 of a product bearing the same trade mark — Article 30 of             n OJ No C 380 , 31 . 12 . 1994 .
          the EC Treaty and the Trade Mark Directive)
                           ( 97/C 40/03 )
                  (Language of the case: Italian)
   (Provisional translation; the definitive translation will be
                                                                                      JUDGMENT OF THE COURT
            published in the European Court Reports)
                                                                                              ( Sixth Chamber)
 In Case C-313 /94 : reference to the Court under Article 177
                                                                                            of 5 December 1996
 of the EC Treaty from the Tribunale di Chiavari (District
 Court, Chiavari ), Italy, for a preliminary ruling in the            in Case C-69/95 Italian Republic v. Commission of the
 proceedings pending before that court between Fratelli                                  European Communities (')
 Graffione SNC and Ditta Fransa — on the interpretation
 of Articles 30 and 36 of the EC Treaty and Article 12                 (EAGGF — Clearance of accounts — 1991 — Milk and
 (2 ) ( b ) of the First Council Directive 89/104/EEC of                                        milk products)
 21 December 1988 to approximate the laws of the                                                  97/C 40/04 )
 Member States relating to trade marks ( OJ No L 40, 11.2 .
  1989 , p. 1 ) — the Court, composed of: G. C. Rodriguez
 Iglesias, President, G. F. Mancini , J. C. Moitinho de                                (Language of the case: Italian)
 Almeida, J. L. Murray and L. Sevon (Presidents of
  Chambers ), P. J. G. Kapteyn, C. Gulmann ( Rapporteur ),
 D. A. O. Edward, J. -P. Puissochet, G. Hirsch and H.                    (Provisional translation; the definitive translation will be
  Ragnemalm, Judges; F. G. Jacobs, Advocate-General; H. A.                       published in the European Court Reports)
  Riihl, Principal Administrator, for the Registrar, has given
  a judgment on 26 November 1996 , in which it has ruled :             In Case C-69/95 : Italian Republic ( Agent: Umberto
  1 . Articles 30 and 36 of the EC Treaty are to be                    Leanza , assisted by Oscar Fiumara ) v. Commission of the
      interpreted as:                                                  FLuropean Communities ( Agent: Eugenio de March ) —
                                                                       application for partial annulment of Commission Decision
      — precluding reliance on protection against unfair                94/871 /EC of 21 December 1994 on the clearance of the
            competition as a ground for prohibiting an                  accounts presented by the Member States in respect of the