CELEX: C1995/248/09
Language: en
Date: 1995-09-23 00:00:00
Title: Reference for a preliminary ruling from the Conseil d'Etat of the Kingdom of Belgium (Sixth Chamber) by judgment of that court of 14 June 1995 in the case of Myrianne Coen v. Belgian State (Case C-246/95)

23 . 9 . 95             EN                   Official Journal of the European Communities                                  No C 248/5
( 2 ) order the Hellenic Republic to pay the costs .                        that surcharge levied since the Member State's accession
                                                                            to the EC Treaty or does it apply only to the increase in
Pleas in law and main arguments adduced in support:                         the surcharge which came into effect after that date ?
Under Article 5 of Directive 89/665/EEC the Member States               5 . Does Community law impose special requirements with
were to have adopted the laws, regulations and                              regard to national rules on the burden of proving that
administrative provisions necessary to comply with the                      the conditions for application of Article 86 of the EC
Directive before 2 1 December 1991 and to communicate the                   Treaty have been satisfied ?
relevant texts to the Commission .
                                                                        6 . If it is assumed that a public undertaking that owns and
The Commission notes that the Hellenic Republic has only                    operates a commercial port occupies a dominant
partially applied the above Directive with regard to public                 position, can it constitute an abuse of that position,
works contracts but that it has taken no steps at all as                    contrary to Article 86 of the Treaty, that the commercial
regards public supply contracts . In reply to the reasoned                  port levied the duties described above and laid down by
opinion, the Greek authorities informed the Commission                      the Minister for Transport for the use of public and
that they had drawn up a draft Presidential Order to                        private commercial ports ?
incorporate the Directive fully into the Greek legal order.
Since, however, that Presidential Order has not yet been                7. If question 6 is answered in the affirmative : do the
issued, the Commission decided to lodge the present                         persons or undertakings on whom the duty was imposed
application .                                                               have any right under Community law to seek
                                                                            reimbursement or compensation ?
(!) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
                                                                        8 . If it is assumed that a public undertaking that owns and
                                                                            operates a commercial port occupies a dominant
                                                                            position , can an abuse of that position, contrary to
                                                                            Article 86 of the Treaty, lie in the fact that the
                                                                            commercial port does not impose the port duties
                                                                            described in this order for reference on its own ferry
Reference for a preliminary ruling by the 0stre Landsretby                  route or on that of its cooperation partner ?
decision of that court of 30 June 1995 in the Case of
            GT-Link A/S v. Danske Statsbaner DSB
                                                                        9 . If the answers to questions 1 , 2, 4 , 6 and/or 8 are in the
                         ( Case C-242/95 )                                  affirmative : can the particular duties and tasks assigned
                           ( 95/C 248/08 )                                  to the defendant result in a finding that the situation is
                                                                            none the less permissible under Article 90 ( 2 ) of the
                                                                            Treaty ?
Reference has been made to the Court of Justice of the
European Communities by decision of the 0stre Landsret
( Eastern Regional Court) by decision of 30 June 1995 ,
which was received at the Court Registry on 11 July 1995 ,
for a preliminary ruling in the case of GT-Link A/S v. Danske
Statsbaner DSB on the following questions :
                                                                        Reference for a preliminary ruling from the Conseil d'Etatoi
1 . is a special surcharge of 40 % of a goods duty which, as            the Kingdom of Belgium ( Sixth Chamber ) by judgment of
      described in this order for reference , is ordinarily levied      that court of 14 June 1995 in the case of Myrianne Coen
      for the use of ports authorized by the Danish Minister                                    v. Belgian State
      for Transport to operate as commercial ports to be                                       ( Case C-246/95 )
      regarded as coming under the EC Treaty rules on the
      Customs Union, including Articles 9 to 13 , or under                                       ( 95/C 248/09 )
      Article 95 of that Treaty ?
                                                                        Reference has been made to the Court of Justice of the
2 . Are the EC Treaty rules on the Customs Union,                       European Communities by a judgment of the Conseil d'Etat
      including Articles 9 to 13 , or Article 95 to be understood       ( Council of State ) of the Kingdom of Belgium ( Sixth
      as meaning that it is incompatible with those provisions          Chamber ) of 14 june 1995 , which was received at the Court
      to impose a special surcharge of 40 % of the goods duty           Registry on 17 July 1995 , for a preliminary ruling in the case
      ordinarily levied if that surcharge is imposed exclusively        of Myrianne Coen v. Belgian State on the following
      on goods imported from outside Denmark ?                          questions :
3 . If question 2 is answered in the affirmative : under what           ' On a proper cobstruction of the fifth paragraph of
      circumstances can such a duty be justified on the ground          Article 1 73 of the Treaty of Rome, with respect to the period
      that it represents consideration for a service provided or        of two months prescribed therein for contesting a Decision
      on grounds of transport policy pursuant to the Title in           of the Commission, may a decision of a court of a Member
      the EC Treaty dealing with transport ?                            State, finding an act of the State concerned unlawful , cause
                                                                        time to start running again where the act in question may
4 . If the special surcharge is held to be incompatible with            have influenced the Decision of the Commission which it is
      the EC Treaty, does that finding apply to the whole of            sought to contest ?'
 ---pagebreak--- No C 248/6                EN                  Official Journal of the European Communities                                       23 . 9 . 95
If that question is answered in the affirmative, the following           Reference for a preliminary ruling from the Conseil d'Etat
question is referred to the Court of Justice of the European             du Grand-duche de Luxembourg, Comite du Contentieux
Communities for a preliminary ruling:                                    by judgment of that court of 12 July 1995 in the case of
                                                                         Futura Participations SA and Singer against Administration
'In the case of a request that candidates be proposed for                                        des Contributions
posts in the administration of the Commission of the                                               ( Case C-250/95 )
European Communities, made during a meeting between
the Permanent Representatives and the Secretary:General of                                            ( 95/C 248/ 11 )
the Commission and directly addressed to the Member
States with no other form of publicity, or outhwith a                    Reference has been made to the Court of Justice of the
recruitment procedure published in the Official Journal of               European Communities by a judgment of the Conseil d'Etat
the European Communities, is such a request valid,                       du Grand-duche de Luxembourg, Comite du Contentieux
particularly having regard to the rules governing the                    ( Council of State of the Grand-Duchy of Luxembourg,
recruitment of members of the temporary staff and officials              Judicial Division ) of 12 July 1995 , which was received at the
of the Commission ?'                                                     Court Registry on 19 July 1995 , for a preliminary ruling in
                                                                         the case of Futura Participations SA and Singer against
                                                                         Administration des Contributions on the following
                                                                         question :
                                                                         Are Article 157 of the Law on income tax and, in so far as is
Reference for a preliminary ruling from the Oberverwal­                  necessary, Article 4 and the second subparagraph of
tungsgerichtNordrhein- Westfalen by orders of that court of              Article 24 ( 2 ) of the France-Luxembourg Convention on
29 May 1995 in the cases of Firirta SAM Schiffahrt GmbH v.               double taxation compatible with Article 52 of the EC Treaty
Federal Republic of Germany and Heinz Stapf v. Federal                   inasmuch as they make the application to non-resident
                        Republic of Germany                              taxpayers having a permanent business'in Luxembourg of
                ( Cases C-248/95 and C-249/95 )                          provisions on the carrying forward of losses subject to the
                                                                         condition that the losses should be related to income
                              ( 95/C 248/10
                                                                         received locally and that accounts should be duly made up
Reference has been made to the Court of Justice                          and kept within the country ?
of the European Communities by orders of the
 Oberverwaltungsgericht Nordrhein-Westfalen ( Higher
Administrative Court, North Rhine Westphalia ) of 29 May
 1995 , which were received at the Court Registry on 19 July
 1995 , for a preliminary ruling in the cases of Firma SAM               Reference for a preliminary ruling from the Bundes­
Schiffahrt GmbH v. Federal Republic of Germany and                       gerichtshof by order of that court of 29 June 1995 in the
                                                                                           case of Sabel BY v. Puma AG
Heinz Stapf v. Federal Republic of Germany on the
following questions :                                                                               ( Case C-251/95 )
                                                                                                       ( 95/C 248/12 )
 1 . was     the adoption of Council Regulation ( EEC )
       No    1101 /89 (*), Commission Regulation ( EEC )                  Reference has been made to the Court of Justice of the
       No   1102/89 ( 2 ) and Commission Regulation ( EEC )               European Communities by an order of the First Civil Senate
       No   3685/89 ( 3 ) appropriate within the meaning of               of the Bundesgerichtshof ( Federal Court of Justice ) of
       Article 75 ( 1 ) ( c ) of the EC Treaty ?                          29 June 1995 , which was received at the Court Registry on
                                                                          20 July 1995 , for a preliminary ruling in the case of Sabel BV
 2 . If the answer to question 1 is in the affirmative, can those         v. Puma AG on the following questions :
       regulations become invalid if, subsequently to their
       adoption, they cease to be appropriate within the                  With reference to the interpretation of Article 4 ( 1 ) ( b )
       meaning of Article 75 ( 1 ) ( c ) of the EC Treaty ?               of the First Council Directive of 21 December 1988 to
                                                                          approximate the laws of the Member States relating to trade
 3 . If the answer to question 2 is in the affirmative, were the          marks ( 89/104/EEC ) ('):
       Regulations still appropriate at the relevant time for the
       levying of the 1990 contributions to the Scrapping                 is it sufficient for a finding that there is a risk of confusion
       Fund ?                                                             between a sign composed of text and picture and a sign
                                                                          consisting merely of a picture, which is registered for
 4. Does the obligation laid down in the Regulations to                   identical and similar goods and is not especially well known
       pay contributions for 1990 infringe fundamental                    in commerce, that the two signs coincide as to their
       Community rights or other Community law, in                        signification ( in this case, a leaping feline beast of prey )?
       particular the right to property, the right to pursue a
       trade or profession, the principle of equality and the             What is the significance in this connection of the wording of
       principle of proportionality ?                                     the Directive, according to which the risk of confusion
                                                                          includes the likelihood that a mark may be associated with
 0 ) OJ No L 116 , 28 . 4 . 1989 , p . 25 .                                an earlier mark ?
 ( 2 ) OJ No L 116 , 28 . 4 . 1989 , p . 30 .
 ( 3 ) OJ No L 360 , 9 . 12 . 1989 , p . 20 .                              (') OJ No L 40 , 11 . 2 . 1989 , p . 1 .