CELEX: 62002CJ0115
Language: en
Date: 2003-10-23 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 23 October 2003. # Administration des douanes et droits indirects v Rioglass SA and Transremar SL. # Reference for a preliminary ruling: Cour de cassation - France. # Free movement of goods - Measures having equivalent effect - Procedures for detention under customs control - Goods in transit intended for the market of a non-member country - Spare parts for motor cars. # Case C-115/02.

Case C-115/02 Administration des douanes et droits indirectsvRioglass SA and Transremar SL(Reference for a preliminary ruling from the Cour de cassation (France))
         
            «(Free movement of goods – Measures having equivalent effect – Procedures for detention under customs control – Goods in transit intended for the market of a non-member country – Spare parts for motor cars)»
            
               
                  Opinion of Advocate General Mischo delivered on 20 March 2003 
                     
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                  Judgment of the Court (Sixth Chamber), 23 October 2003  
                     
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            Summary of the Judgment
         
         
                  1..
                  Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Articles 28 EC to 30 EC – Scope – Goods in transit through a Member State and intended for a non-member country – Included  (Arts 28 EC to 30 EC) 
         
                  2..
                  Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation providing for a procedure for detention by the customs authorities, at the time of intra-Community transit,
                     of goods suspected of infringement of trade mark, lawfully manufactured in a Member State and intended for a non-member country – Justification – Protection of industrial and commercial property – None – Transit not forming part of the specific subject-matter of the trade marks  
                  (Arts 28 EC and 30 EC) 
         
         1.
          Goods lawfully manufactured in one Member State in transit within another Member State come within the scope of Articles 28
         EC to 30 EC even if they are intended for a non-member country. The Customs Union established by the Treaty necessarily implies
         that the free movement of goods between Member States should be ensured. That freedom could not itself be complete if it were
         possible for Member States to impede or interfere in any way with the movement of goods in transit so that it is necessary,
         as a consequence of the Customs Union and in the mutual interest of the Member States, to acknowledge the existence of a general
         principle of freedom of transit of goods within the Community. see para. 18, 20
         
         2.
          Article 28 EC is to be interpreted as precluding the implementation, by the customs authorities of a Member State, pursuant
         to a legislative measure of that Member State concerning intellectual property and on the ground of suspected infringement
         of trade mark, of procedures for detention of goods lawfully manufactured in another Member State and intended, following
         their transit through the territory of the first Member State, to be placed on the market in a non-member country. A measure of detention under customs control which delays the movement of goods and may block their movement completely, has
         the effect of restricting the free movement of goods and therefore constitutes an obstacle to that freedom. Such a measure cannot be justified on the ground of protection of industrial and commercial property within the meaning of
         Article 30 EC since that transit does not involve any marketing of the goods in question and is therefore not liable to infringe
         the specific subject-matter of the trade mark. see paras 21, 24, 27, 29-30, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)23 October 2003  (1)
         
         
            
         
               ((Free movement of goods – Measures having equivalent effect – Procedures for detention under customs control – Goods in transit intended for the market of a non-member country – Spare parts for motor cars))
               
            In Case C-115/02, 
            REFERENCE to the Court under Article 234 EC by the Cour de cassation (France) for a preliminary ruling in the proceedings
            pending before that court between 
            
            
            
             Administration des douanes et droits indirects 
            
            
            and
            
             Rioglass SA,  Transremar SL 
            
            
            on the interpretation of Article 28 EC,
            
            THE COURT (Sixth Chamber),,
            
            composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris (Rapporteur), F. Macken and J.N. Cunha Rodrigues, Judges, 
            
            Advocate General: J. Mischo, Registrar: M.-F. Contet, Principal Administrator, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               Rioglass SA and Transremar SL, by J.-P. Bellecave, avocat, 
               
               
               ─
               the French Government, by A. Colomb and G. de Bergues, acting as Agents, 
               
               
               ─
               the Portuguese Government, by L.I. Fernandes, A.S. Neves and J.S. de Andrade, acting as Agents, 
               
               
               ─
               the Commission of the European Communities, by R. Tricot, acting as Agent, and  E. Cabau, avocat, 
               
               
            
            
            having regard to the report of the Judge-Rapporteur,
            
            after hearing the Opinion of the Advocate General at the sitting on 20 March 2003, 
         gives the following
         
         
         Judgment
         1
            
         By judgment of 26 March 2002, received at the Registry of the Court on 2 April 2002, the Cour de cassation (Court of cassation)
         (France) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 28
         EC. 
         
         
         2
            
         That question has been raised in proceedings between the Administration des douanes et droits indirects (Customs and Indirect
         Taxes Administration,  
         the customs authority) and Rioglass SA (
         Rioglass) and Transremar SL (
         Transremar), both companies registered under Spanish law, concerning the detention in France, on suspicion of infringement of trade
         mark, of spare parts for cars manufactured in Spain and being transported to Poland. 
         
            
               National law
            
         
         3
            
         Article L.716-8 of the Code de la propriété intellectuelle (Intellectual Property Code) introduced by Article 11 of Law 94-102
         of 5 February 1994 (
          Journal Officiel de la République Française  of 8 February 1994, p. 2151) provides: The customs authority may, as part of its controls, upon a written request from the owner of a registered trade mark or the
         holder of an exclusive export right, detain goods which the latter alleges are supplied under a trade mark which infringes
         his registered trade mark or in respect of which he holds an exclusive right of use.Where the customs authority detains goods it shall forthwith notify that fact to the Procureur de la République (state prosecutor),
         the person requesting such detention and the person declaring or in possession of the goods.Unless within 10 working days of the notification of the detention of the goods the person requesting the detention provides
         the customs authority with evidence either:
         
         
         ─
            of an order of the President of the Tribunal de Grande Instance (Regional Court) for interim measures; or 
         
         
         
         ─
            that the person requesting the detention has instituted civil or criminal proceedings and provided the security required to
            cover any liability where the infringement is not upheld in final proceedings ... 
         the measure by which the goods are detained shall be discharged.
         The dispute in the main proceedings and the question referred for a preliminary ruling
         
         4
            
         Rioglass manufactures and sells windows and windscreens for all makes of car. According to the file, it was approved by Sogédac,
         responsible, in its capacity as agent and central purchaser, for the approval of suppliers to the car manufacturers Peugeot,
         Citroën and Renault, as a supplier to those manufacturers. 
         
         
         5
            
         In November 1997, Rioglass sold to Jann, a company registered in Poland, a consignment of windows and windscreens, lawfully
         produced in Spain, intended for various makes of car. Transremar was given responsibility for the transport of those goods.
         The goods were exported from Spain to Poland under cover of a Community transit certificate EX T2 issued on 24 November 1997,
         and thus qualified for the duty-suspension arrangements which allow movement between two points in the customs territory of
         the Community and Poland free of import duty, tax or commercial policy measures. Some of the windows and windscreens, intended
         for use in Peugeot, Citroën or Renault models, bore the logo or trade mark of those constructors alongside the manufacturer's
         trade mark.  
         
         
         6
            
         On the same day, French customs officers carried out an inspection of Transremar's lorry near Bordeaux. On 25 November 1997
         and 27 November 1997, the customs officers drew up, respectively, a report of detention of the goods and a report of seizure
         of the goods on suspicion of infringement of trade mark.   
         
         
         7
            
         Rioglass and Transremar applied for interim relief seeking an order that the detention and seizure measures be lifted. By
         two orders of 8 December 1997 and 8 January 1998, the judge hearing the application for interim relief dismissed the applications,
         whereupon the applicants brought appeal proceedings against those orders. Their appeals were upheld by the Cour d'appel de
         Bordeaux (Bordeaux Court of Appeal) which ruled, in its judgment of 22 November 1999, that the detention of the lorry, the
         windscreens and the windows constituted a clear infringement of the right to private property and ordered the customs authority
         to return the goods, documents and deposits. 
         
         
         8
            
         The customs authority lodged an appeal against that judgment before the Cour de cassation. 
         
         
         9
            
         The Cour de cassation referred in that context to the judgment in Case C-23/99  
          Commission  v  
          France  [2000] ECR I-7653, in which the Court of Justice held that, by implementing, pursuant to the Code de la propriété intellectuelle,
         procedures for detention by the customs authorities of goods lawfully manufactured in a Member State of the European Community
         which are intended, following their transit through French territory, to be placed on the market in another Member State,
         where they may be lawfully marketed, the French Republic had failed to fulfil its obligations under Article 28 EC. 
         
         
         10
            
         The Cour de cassation formed the view, however, that resolution of the dispute called for an interpretation of Community law
         in order to determine whether the solution adopted in that judgment also applied in the present case, and decided to stay
         the proceedings and refer the following question to the Court for a preliminary ruling: Is Article 30 of the Treaty, now Article 28 EC, to be interpreted as meaning that it precludes the implementation, pursuant
         to the Code de la propriété intellectuelle, of procedures for detention by the customs authorities of goods lawfully manufactured
         in a Member State of the European Community which are intended, following their transit through French territory, to be placed
         on the market in a non-member country, in the present case, Poland?
         The question referred for a preliminary rulingObservations submitted to the Court
         
         
         11
            
         According to Rioglass and Transremar, the Court's reasoning in  
          Commission  v  
          France , cited above, is perfectly applicable to the circumstances of the present case. They argue that the transport in issue in
         the main proceedings should be treated as a Community transit operation. Any measure of detention or seizure, carried out
         pursuant to the Code de la propriété intellectuelle, the Customs Code or Council Regulation (EC) No 3295/94 of 22 December
         1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure
         of counterfeit and pirated goods (OJ 1994 L 341, p. 8), of goods not intended to be placed on the market in France but which
         are merely being transported through that country in order to be marketed in a non-member country cannot be justified on the
         grounds of the protection of industrial and commercial property. Furthermore, there is no provision enabling a Member State
         to limit the free movement of Community goods in its territory merely because those goods are intended for a non-member country.
         
         
         
         12
            
         The French Government submits that Article 28 EC applies only to national measures liable to restrict intra-Community trade
         whereas the goods in question in the present case are intended to be placed on the market in a non-member country. The judgment
         in  
          Commission  v  
          France  is therefore irrelevant for purposes of the present case. According to the French Government, it is the Europe Agreement
         establishing an association between the European Communities and their Member States, of the one part, and the Republic of
         Poland, of the other part (OJ 1993 L 348, p. 2,  
         the agreement) which must be applied for the purpose of resolving the dispute in the main proceedings. 
         
         
         13
            
         In this respect it is apparent from the case-law (Case 104/81  
          Kupferberg  [1982] ECR 3641, paragraphs 29 to 31, Case C-312/91  
          Metalsa  [1993] ECR I-3751, paragraphs 11 and 12, and Case C-63/99  
          Gloszczuk  [2001] ECR I-6369, paragraph 48), that the mere similarity between the wording of a provision of one of the Treaties establishing
         the Communities and of an international agreement between the Communities and a non-member country does not suffice for the
         same meaning to be ascribed to the terms of that agreement as they bear in the Treaties.   
         
         
         14
            
         Thus, referring to the judgment in Case 270/80  
          Polydor and RSO  [1982] ECR 329, and emphasising that the purpose of the agreement differs from that of Articles 28 EC to 30 EC, the French
         Government submits that Article 10(4) of the agreement must be interpreted as not precluding implementation by the customs
         authorities of a Member State of procedures for the detention of goods originating in another Member State and intended, following
         their transit through the first State, to be placed on the Polish market. 
         
         
         15
            
         The Portuguese Government submits that Article 28 EC precludes the implementation of procedures, such as those in issue in
         the main proceedings, for the detention of goods lawfully manufactured in one Member State and intended, following their transit
         through the Member State in question, to be placed on the market of a non-member country on the ground that those procedures
         may delay the movement of the goods by 10 days and are therefore disproportionate to the objective which they seek to achieve.
         
         
         
         16
            
         Finally, the Commission takes the view that Articles 28 EC to 30 EC are the only relevant provisions for the purposes of replying
         to the question referred. It considers that neither the Community rules on the harmonisation and unification of intellectual
         property rights nor Regulation No 3295/94 are relevant in the present case. According to settled case-law, Article 28 EC applies
         to all goods originating in or destined for a Member State. Therefore the Court's reasoning in  
          Commission  v  
          France  is applicable in the present case. It matters little in that regard that the goods in question are intended for export to
         a non-member country provided that they originate in a Member State and, in particular as in the present case, that they were
         lawfully manufactured in that Member State. 
         Reply of the Court
         
         
         17
            
         It should be noted as a preliminary point that the fact that the goods in question in the main proceedings were intended for
         export to a non-member country does not necessarily lead to the conclusion that, in a situation such as that in the present
         case, those goods do not fall within the scope of the EC Treaty provisions on the free movement of goods between Member States.
         
         
         
         18
            
         Given that, as is apparent from the file, the present case involves goods lawfully manufactured in one Member State in transit
         within another Member State, it must be pointed out that, according to settled case-law, the Customs Union established by
         the EC Treaty necessarily implies that the free movement of goods between Member States should be ensured. That freedom could
         not itself be complete if it were possible for Member States to impede or interfere in any way with the movement of goods
         in transit. It is therefore necessary, as a consequence of the Customs Union and in the mutual interest of the Member States,
         to acknowledge the existence of a general principle of freedom of transit of goods within the Community. That principle is,
         moreover, confirmed by the reference to transit in Article 30 EC (see, to that effect, Case 266/81  
          SIOT  [1983] ECR 731, paragraph 16, and Case C-367/89  
          Richardt and  
            Les Accessoires Scientifiques  [1991] ECR I-4621, paragraph 14). 
         
         
         19
            
         The Court has moreover already held that Articles 28 EC to 30 EC are applicable to goods in transit through a Member State
         but intended for a non-member country (see, to that effect, Case C-350/97  
          Monsees  [1999] ECR I-2921 and  
          Richardt and  
            Les Accessoires Scientifiques , cited above).  
         
         
         20
            
         It follows that, even if goods in transit are intended for a non-member country, they come within the scope of Articles 28
         EC to 30 EC and the question referred for a preliminary ruling must accordingly be examined in the light of those provisions.
         
         
         
         21
            
         The Court is bound to conclude in that connection, firstly, that a measure of detention under customs control such as that
         in issue in the main proceedings, which delays the movement of goods and, if the competent court rules that they are to be
         confiscated, may block their movement completely, has the effect of restricting the free movement of goods and therefore constitutes
         an obstacle to that freedom (on the same French legislation, see  
          Commission  v  
          France , paragraphs 22 and 23). 
         
         
         22
            
         Therefore, given that the detention under customs control in issue in the main proceedings was carried out on the basis of
         the Code de la propriété intellectuelle, it is necessary to determine whether the obstacle to the free movement of goods created
         by that detention under customs control may be justified by the need to ensure the protection of industrial and commercial
         property referred to in Article 30 EC. 
         
         
         23
            
         In order to answer that question it is necessary to take account of the purpose of that exception, which is to reconcile the
         requirements of the free movement of goods and the right of industrial and commercial property, by avoiding the maintenance
         or establishment of artificial barriers within the common market. Article 30 EC allows derogations from the fundamental principle
         of the free movement of goods within the common market only to the extent to which such derogations are justified for the
         purpose of safeguarding rights which constitute the specific subject-matter of such property (see, inter alia, Case C-10/89
          
          Hag GF  [1990] ECR I-3711, paragraph 12, Case C-61/97  
          FDV  [1998] ECR I-5171, paragraph 13, and  
          Commission  v  
          France , paragraph 37).  
         
         
         24
            
         According to the judgment for reference, the goods in issue in the present case were detained on suspicion of infringement
         of trade mark. 
         
         
         25
            
         With respect to trade marks, it is settled case-law that the specific subject-matter of a trade mark is, in particular, to
         guarantee to the owner that he has the exclusive right to use that mark for the purpose of putting a product on the market
         for the first time and thus to protect him against competitors wishing to take unfair advantage of the status and reputation
         of the trade mark by selling products illegally bearing it (see, in particular, Case 16/74  
          Centrafarm  [1974] ECR 1183, paragraph 8, Case 102/77  
          Hoffmann-La Roche  [1978] ECR 1139, paragraph 7, and Case C-349/95  
          Loendersloot  [1997] ECR I-6227, paragraph 22). 
         
         
         26
            
         The implementation of such protection is therefore linked to the marketing of the goods. 
         
         
         27
            
         Transit, such as that in issue in the main proceedings, which consists in transporting goods lawfully manufactured in a Member
         State to a non-member country by passing through one or more Member States, does not involve any marketing of the goods in
         question and is therefore not liable to infringe the specific subject-matter of the trade mark. 
         
         
         28
            
         Furthermore, as Advocate General Mischo noted at point 45 of his Opinion, that conclusion holds good regardless of the final
         destination of the goods in transit. The fact that the goods are subsequently placed on the market in a non-member country
         and not in another Member State does not alter the nature of the transit operation which, by definition, does not constitute
         a placing on the market. 
         
         
         29
            
         Therefore, a measure of detention under customs control, such as that in issue in the main proceedings, cannot be justified
         on the ground of protection of industrial and commercial property within the meaning of Article 30 EC. 
         
         
         30
            
         In those circumstances, the answer to the question referred for a preliminary ruling must be that Article 28 EC is to be interpreted
         as precluding the implementation, pursuant to a legislative measure of a Member State concerning intellectual property, of
         procedures for detention by the customs authorities of goods lawfully manufactured in another Member State and intended, following
         their transit through the territory of the first Member State, to be placed on the market in a non-member country.
         
         Costs
         31
            
         The costs incurred by the French and Portuguese Governments and by the Commission, which have submitted observations to the
         Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending
         before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber),
         
         
         in answer to the question referred to it by the Cour de cassation by judgment of 26 March 2002, hereby rules: 
         
                  Puissochet
               
               
                  Gulmann 
               
               
                  Skouris 
               
            
                  Macken
               
               
                  Cunha Rodrigues 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 23 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: French.