CELEX: C1997/357/34
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 30 September 1997 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-341/97)

22 . 11 . 97          EN                 Official Journal of the European Communities                                      C 357/ 19
Reference for a preliminary ruling by the Verwaltungsge­            Reference for a preliminary ruling from the Bayerische
richtshof (Vienna) by order of that court of 12 August              Verwaltungsgericht Ansbach by order of that court of
1997 in the case of Erna Pelzl, Johannes Kovac, Harald              7 July 1997 in the case of 1 . Omer Nazli, 2. Caglar Nazli
Hohenberg, Kovac Schrott GmbH NFG KG, Wiener Stad­                               and 3 . Melike Nazli v. Stadt Nürnberg
tische Allgemeine Versicherungs AG, Ulf Zmölnig, Kovac                                       ( Case C-340/97)
Management GmbH P. Kovac & Co. GmbH and Kovac
Eisen Maschinen Metalle GmbH NFG KG against the                                                ( 97/C 357/33 )
               Steiermärkische Landesregierung
                       ( Case C-338/97 )                            Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Bayerische Ver­
                         ( 97/C 357/32 )
                                                                    waltungsgericht ( Bavarian Administrative Court ) Ansbach
                                                                    ( Fifth Chamber) of 7 July 1997, which was received at the
                                                                    Court Registry on 1 October 1997, for a preliminary
                                                                    ruling in the case of 1 . Omer Nazli, 2 . Caglar Nazli and
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsge­
                                                                    3 . Melike Nazli against Stadt Nürnberg on the following
                                                                    questions:
richtshof ( Administrative Court), Vienna, of 12 August
1997, received at the Court Registry on 29 September
1997, for a preliminary ruling in the case of Erna Pelzl,           1 . Does a Turkish worker who has achieved the legal
Johannes Kovac, Harald Hohenberg, Kovac Schrott                           status conferred by the third indent of Article 6 ( 1 ) of
GmbH NFG KG, Wiener Stadtische Allgemeine Versiche­                       Decision No 1 /80 of 19 September 1980 of the
rungs AG, Ulf Zmölnig, Kovac Management GmbH, P.                         Association Council ( set up by the Association
Kovac & Co . GmbH and Kovac Eisen Maschinen Metalle                      Agreement between the European Economic
GmbH NFG KG v. Steiermärkische Landesregierung                            Community and Turkey ) on the development of the
( Government of Steiermark) on the following questions:                  Association forfeit that status subsequently if he is
                                                                          taken into custody on strong suspicion of having
                                                                         committed a crime for which he is ultimately
                                                                         convicted and given a suspended prison sentence ?
Does Article 33 ( 1 ) of the sixth Council Directive 77/388/
EEC of 17 May 1977 on the harmonization of the laws of
the Member States relating to turnover taxes — Common               2.   If not:
system of value added tax: uniform basis of assessment (')
preclude, on the ground that it is in the nature of a                     Is the expulsion of a Turkish worker in such
turnover tax, the maintenance in force of a tax which is
                                                                         circumstances solely on general preventive grounds,
payable in a Bundesland ( Regional State ) of a Member                   that is to say, as a deterrent to other aliens, compatible
State of the European Communities:                                       with Article 14 ( 1 ) of Decision No 1 /80 ?
— in respect of each calender year by all undertakings
     directly or indirectly involved in tourism which have
     their registered office or a place of business within
     certain closely defined areas, where the sum of those
     areas comprises almost the whole area of the                   Action brought on 30 September 1997 by the Commission
     Bundesland, and
                                                                    of the European Communities against the Kingdom of the
                                                                                                 Netherlands
                                                                                             ( Case C-341/97)
— the amount of which is essentially proportional to the                                       ( 97/C 357/34 )
     turnover achieved by the undertaking primarily in that
     Regional State within a calendar year, but where the
     rate of contribution varies according to the intensity of      An action against the Kingdom of the Netherlands was
     tourism in that area and according to the degree of            brought before the Court of Justice of the European
     benefit which the legislature deems the commercial             Communities on 30 September 1997 by the Commission
     sector in question ( occupational group ) to derive from       of the European Communities, represented by H. van
     tourism, and                                                   Vliet, acting as Agent, with an address for service in
                                                                    Luxembourg at the office of C. Gomez de la Cruz,
                                                                    Wagner Centre, Kirchberg.
— where no provision is made for the deduction of input
     tax ?                                                          The applicant claims that the Court should :
                                                                    — declare that, by adopting on 16 December 1992 the
C ) OJ L 145 , p. 1 .
                                                                          Regulation for the prevention of the introduction of
                                                                          foreign toxic dinoflagellata, the Kingdom of the
                                                                          Netherlands has failed to fulfil its obligations pursuant
                                                                          to Articles 30 and 36 of the EC Treaty,
 ---pagebreak--- C 357/20             EN                  Official Journal of the European Communities                                     22 . 11 . 97
— order the Kingdom of the Netherlands to pay the                    1997, which was received at the Court Registry on
     costs .                                                         1 October 1997, for a preliminary ruling in the case of
                                                                    Lloyd Schuhfabrik Meyer & Co. GmbH v. Kliisen Handel
                                                                    BY on the following questions :
Pleas in law and main arguments adduced in support:
                                                                    1 . Does it suffice, for there to be a likelihood of
                                                                         confusion because of similarity between the sign and
By prohibiting the importation into the Netherlands of                   the trade mark and identity of the goods or services
( young) molluscs from other Member States for the                       covered by the sign and the mark, that the mark and
purposes of their being placed in surface waters ( for                   the sign each consist of a single syllable only, are
example, in order to let them grow there ), the contested                identical in sound both at the beginning and as regards
Regulation has the effect of restricting intra-Community                 the only combination of vowels and the — single —
trade and thus falls within the prohibition contained in                 final consonant of the mark recurs in the sign in
Article 30 of the Treaty.                                                similar form ('t' instead of 'd') in a consonant cluster
                                                                         of three consonants including ' s'; specifically, do the
                                                                         designations ' Lloyd' and 'Loints' for shoes conflict ?
Contrary to - the view taken by the Netherlands
Government, the contested regulation is not justified               2 . What is the significance in this connection of the
pursuant to Article 36 of the Treaty. According to the                   wording of the Directive ( l ) which provides that the
                                                                         likelihood of confusion includes the likelihood of
Netherlands Government, the objective of the contested
Regulation is to prevent the introduction into Netherlands               association between the sign and the trade mark ?
waters of foreign algae ( dinoflagellata ) and of cysts             3 . Must a special distinctive character, and hence an
deriving therefrom ( survival phases ) which may lead to the             extended material scope of protection of a
formation of biotoxins such as paralytic shellfish poison                distinguishing sign, already be taken to exist where
('PSP') in bivalve molluscs. The consumption of bivalve                  there is a degree of recognition of 10% in the relevant
molluscs containing PSP can, according to the Netherlands                trade circles ?
Government, be harmful to human health (giving rise,
inter alia, to symptoms of paralysis and sometimes even                  Would that be the case with a degree of recognition of
death ). According to the Netherlands Government, bivalve                36% ?
molluscs can contain PSP, because they feed on algae
which produce that substance. However, it has not been                   Would such an extension of the scope of protection
proven that the transportation of bivalve molluscs can                   lead to a different answer to question 1 , if that
result in the introduction of PSP-producing dinoflagellata.              question were to be answered by the Court of Justice
There are numerous coastal zones in the Community                        in the negative ?
where PSP-producing dinoflagellata have never been
found, or at any rate not for many years; the importation           4.   Is a trade mark to be taken to have an enhanced
of bivalve molluscs from those regions and their                         distinctive character       simply     because it has      no
introduction into Netherlands waters does not involve any                descriptive elements ?
risk .  The   Commission      therefore considers   that  the
objective pursued by the Netherlands may also be                    (') First Council Directive 89/104/EEC of 21 December 1988 to
achieved by imposing a requirement that imported                        approximate the laws of the Member States relating to trade
                                                                        marks ( OJ L 40, 11 . 2 . 1989, p. 1 ).
consignments of bivalve molluscs may be introduced into
Netherlands waters only if they are accompanied by a
certificate showing that the consignment in question
comes from a coastal zone where PSP-producing
dinoflagellata have never been found, or at any rate not in
the recent past.                                                    Action brought on 1 October 1997 by the Commission of
                                                                    the European Communities against the Kingdom of
                                                                                                   Belgium
                                                                                             ( Case C-343/97)
                                                                                               ( 97/C 357/36 )
Reference for a preliminary ruling from the Landgericht             An action agaist the Kingdom of Belgium was brought
Miinchen I by order of that court of 11 September 1997              before the Court of Justice of the European Communities
in the case of Lloyd Schuhfabrik Meyer & Co. GmbH v.                on 1 October 1997 by the Commission of the European
                     Kliisen Handel BY                              Communities, represented by Gotz zur Hausen, Legal
                                                                    Adviser, acting as Agent, with an address for service in
                      ( Case C-342/97
                                                                    Luxembourg at the office of Carlos Gomez de la Cruz,
                        ( 97/C 357/35 )                             of the Commission 's Legal Service, Wagner Centre,
                                                                    Kirchberg.
                                                                    The Commission claims that the Court should :
Reference has been made to the Court of Justice of the
European Communities by an order of the Landgericht                 — declare that, by failing to adopt all the laws,
Miinchen I ( Munich I Regional Court) of 11 September                    regulations and administrative provisions necessary to