CELEX: C2003/019/31
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-422/02 P: Appeal brought on 21 November 2002 by Europe Chemi-Con (Deutschland) GmbH against the judgment delivered on 12 September 2002 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-89/00 between Europe Chemi-Con (Deutschland) GmbH and the Council of the European Union, supported by the Commission of the European Communities

25.1.2003               EN                    Official Journal of the European Communities                                        C 19/17
      —     by accepting the systematic refusal by the Tekhniko          1.   Does retail trading constitute a service within the meaning
            Epimelitirio Elladas (TEE) (Technical Chamber of                  of Article 2 of the Directive?
            Greece), registration with which is an essential
            precondition in order to pursue the profession of                 If the answer to this question should be affirmative:
            architect in Greece, to register Community nationals
            holding non-Greek qualifications which should be             2.   To what extent must the content of such services by a
            recognised under Council Directive 85/384/EEC of                  retailer be specifically stated in order to guarantee the
            10 June 1985 on the mutual recognition of dip-                    certainty of the subject-matter of trade-mark protection
            lomas, certificates and other evidence of formal                  that is required in order to
            qualifications in architecture, including measures
            to facilitate the effective exercise of the right of
            establishment and freedom to provide services (1),                (a)   fulfil the function of the trade mark pursuant to
                                                                                    Article 2 of the Directive, namely distinguishing the
            the Hellenic Republic has failed to fulfil its obli-                    goods or services of one undertaking from those of
            gations under Articles 6(2), 10 and 12 of that                          other undertakings, and
            directive;
(b)   order the Hellenic Republic to pay the costs.                           (b) define the scope of protection of such a trade mark
                                                                                    in the event of a conflict?
Pleas in law and main arguments                                          3.   To what extent is it necessary to define the scope of
                                                                              similarity (Article 4(1)(b) and Article 5(1)(b) of the
                                                                              Directive) between those services by a retailer and
The Commission alleges that the Hellenic Republic has failed
to transpose Directive 85/384 into national law correctly
inasmuch as the Greek legislation lays down: (i) a parallel                   (a)   the other services provided in connection with the
system for contesting diplomas, certificates and other evidence                     sale of goods, or
of formal qualifications beyond that provided for by the
directive (referral to the advisory committee for architecture);              (b) the goods sold by that particular retailer?
and (ii) an obligation on the other Member States beyond that
owed by them under Article 6(1) of the directive.
In addition, the Commission alleges that the defendant has
implemented the directive inappropriately by reason of incor-
rect administrative practice on the part of the Tekhniko
Epimelitirio Elladas (TEE). In its submission, the TEE either
does not examine in due time applications for entry on the
register or does not inform applicants, giving reasons, of the           Appeal brought on 21 November 2002 by Europe Chemi-
refusal to register them.                                                Con (Deutschland) GmbH against the judgment delivered
                                                                         on 12 September 2002 by the Fourth Chamber (Extended
( 1) OJ L 223, 21.8.1985, p. 15.                                         Composition) of the Court of First Instance of the
                                                                         European Communities in case T-89/00 ( 1) between Euro-
                                                                         pe Chemi-Con (Deutschland) GmbH and the Council of
                                                                         the European Union, supported by the Commission of
                                                                                           the European Communities
Reference for a preliminary ruling by the Bundespat-
entgericht by order of that Court of 15 October 2002 in                                         (Case C-422/02 P)
the appeal matter of PRAKTIKER Bau- und Heimwerker-
                            märkte AG
                                                                                                  (2003/C 19/31)
                         (Case C-418/02)
                          (2003/C 19/30)
                                                                         An appeal against the judgment delivered on 12 September
                                                                         2002 by the Fourth Chamber (Extended Composition) of the
Reference has been made to the Court of Justice of the                   Court of First Instance of the European Communities in case
European Communities by order of the Bundespatentgericht                 T-89/00 between Europe Chemi-Con (Deutschland) GmbH
(Federal Patents Court) of 15 October 2002, received at the              and the Council of the European Union, supported by the
Court Registry on 20 November 2002, for a preliminary ruling             Commission of the European Communities, was brought
in the appeal matter of PRAKTIKER Bau- und Heimwerker-                   before the Court of Justice of the European Communities on
märkte AG on the following questions on the interpretation of            21 November 2002 by Europe Chemi-Con (Deutschland)
the First Council Directive 89/104/EEC of 21 December 1988               GmbH, established in Nuremberg (Germany), represented by
to approximate the laws of the Member States relating to trade           K. Adamantopoulos, J. J. Gutiérrez Gisbert and J. Branton,
marks (OJ L 40 1989, p. 1):                                              lawyers, with an address for service in Luxembourg.
 ---pagebreak--- C 19/18                EN                     Official Journal of the European Communities                                       25.1.2003
The Appellant claims that the Court should:                              Finally, notwithstanding that the Appellant’s case is not based
                                                                         on an infringement of the general principle of equal treatment,
                                                                         the Appellant maintains that the Court of First Instance erred
1.    set aside the judgment of the Court of First Instance of           in law in any event (and failed to give adequate reasoning)
      12 September 2002 in case T-89/00;                                 when concluding in paragraph 57 of the judgment that the
                                                                         difference in legal basis for the application of anti-dumping
                                                                         duties against LAECs from the U.S.A. and Thailand on the one
2.    make an order that the costs of and occasioned by these            hand, and Japan on the other, was sufficient reason to
      proceedings, and those before the Court of First Instance,         render the principle of equal treatment inapplicable in the
      be borne by the Council;                                           circumstances of the present case.
3.    annul the last indent of Article 3 of Council Regulation
                                                                         (1 ) OJ C 163, 10.06.2000, p. 32.
      (EC) No. 173/2000 of 24 January 2000 terminating the
                                                                         (2 ) OJ L 22, 27.01.2000, p. 1.
      anti-dumping proceedings concerning imports of certain             (3 ) Council Regulation (EC) No. 384/96 of 22 December 1995 on
      large aluminium electrolytic capacitors (‘LAECs’) originat-             protection against dumped imports from countries not members
      ing in Japan, the Republic of Korea and Taiwan (2) in so                of the European Community (OJ L 56, 06.03.1996, p. 1).
      far as it does not state that the retroactive effect of this
      Regulation shall apply from 4 December 1997 onwards;
      or, in the alternative, refer the case back to the Court of
      First Instance.
Pleas in law and main arguments
                                                                         Action brought on 22 November 2002 by the Com-
                                                                         mission of the European Communities against the United
                                                                                Kingdom of Great Britain and Northern Ireland
The Appellant submits that the Court of First Instance wrongly
substituted its own understanding for what the Appellant had
claimed by stating in paragraph 48 of the judgment that the                                        (Case C-423/02)
Appellant had ‘essentially alleged an error in law with respect
to the application of the principle of equal treatment in the
Contested Regulation’. Rather, the Court of First Instance
                                                                                                    (2003/C 19/32)
should have held that the Appellant had essentially alleged an
error in law with respect to the application of the principle of
non discrimination, as laid down in Article 9(5) of the Basic
Anti-Dumping Regulation (‘BR’) ( 3), to the facts of the present
case. Had the Court of First Instance properly considered the
application of the principle of non discrimination laid down             An action against the United Kingdom of Great Britain and
in Article 9(5) BR, rather than concentrating on the principle of        Northern Ireland was brought before the Court of Justice of
equal treatment, it should have reached a different conclusion.          the European Communities on 22 November 2002 by the
                                                                         Commission of the European Communities, represented by
                                                                         X. Lewis and M. Konstantinidis, acting as agents, with an
                                                                         address for service in Luxembourg.
The Appellant also submits that the Court of First Instance
erred in law by concluding in paragraph 58 of the judgment
in relation to Article 9(5) BR that:
                                                                         The Applicant claims that the Court should:
(i)   Article 9(5) BR relates only to the initial imposition of          1)     declare that by failing to adopt the laws, regulations or
      anti-dumping duties;                                                      administrative provisions necessary to comply fully with
                                                                                Council Directive 1999/31/EC of 26 April 1999 on the
                                                                                landfill of waste (1) or, in any event, by failing to notify
(ii)  Article 9(5) BR does not necessarily apply to the mainten-                such provisions to the Commission, the United Kingdom
      ance in force of anti-dumping duties, pursuant to                         of Great Britain and Northern Ireland has failed to fulfil
      Article 11(2) BR; and                                                     fully its obligations under Article 18 of that Directive;
(iii) Article 9(5) BR may be applied at the discretion of the            2)     order the United Kingdom of Great Britain and Northern
      Council and as such is a non-mandatory rule of law.                       Ireland to pay the costs.