CELEX: C1997/108/27
Language: en
Date: 1997-04-05 00:00:00
Title: Reference for a preliminary ruling by the Hoge Raad der Nederlanden, by judgment of that court of 7 February 1997 in the case of 1. Bayerische Motorenwerke AG and 2. BMW Nederland BV v. Ronald Karel Deenik (Case C-63/97)

No C 108/ 14          EN                     Official Journal of the European Communities                                       5 . 4 . 97
Reference for a preliminary ruling from Retten i Aalborg,               Commission of the European Communities was brought
by a letter of 7 February 1997 in the case of Foreningen af             before the Court of Justice of the European Communities
danske Videogramdistributorer, acting for Egmont Film                   on 12 February 1997 by the Commission of the European
A/S, Buena Vista Home Entertainment A/S, Scanbox                        Communities, represented by Julian Currall, acting as
Danmark A/S, Metronome Video A/S, Polygram Records                      Agent, and Denis Waelbroeck, acting as advocate, with an
A/S, Nordisk Film Video A/S, Irish Video A/S and Warner                 address for service in Luxembourg at the office of C.
Home Video Inc., v. Laserdisken, in the person of Hans                  Gomez de la Cruz, of its Legal Service, Wagner Centre .
Kristian Pedersen, Interveners: Sammenslutningen af Dan­
ske Filminstruktorer, Michael Viuf Christiansen, Pioneer                The appellant claims that the Court should:
Electronics Denmark A/S and Videoforhandler Ove Jensen
                                                                        — annul the judgment delivered on 12 December 1996
                         ( Case C-61 /97)                                      by the Court of First Instance of the European
                           ( 97/C 108/25 )                                     Communities in Case T-33/95, Maria Lidia Lozano
                                                                               Palacios v. Commission of the European Communities,
Reference has been made to the Court of Justice of the                         inasmuch as it was held in that judgment that the
European Communities by letter of 7 February 1997 from                         respondent to the appeal was entitled to the
Retten i Aalborg (Aalborg Court), which was received at                        installation allowance provided for by the first
the Court Registry on 12 February 1997, for a preliminary                      subparagraph of Article 5 ( 1 ) of Annex VII to the Staff
ruling in the case between Foreningen af danske Video­                         Regulations merely because she was in receipt of the
gramdistributorer ( Association            of Danish Video                     expatriation allowance,
Distributors), acting for Egmont Film A/S and Others, and
                                                                        — make an appropriate order as to costs .
Laserdisken, in the person of Hans Kristian Pedersen,
Interveners: Sammenslutningen af Danske Filminstruktorer                Pleas in law and main arguments adduced in support:
(Union of Danish Film Directors ) and Others on the
following questions :                                                   The Court of First Instance erred in law in holding that
                                                                        the mere fact that the respondent to the appeal was
Do Article 30 of the EC Treaty, in conjunction with                     entitled to an expatriation allowance — because,
Article 36 , or Articles 85 to 86 preclude a person to                  technically, she fulfilled the conditions laid down in
whom the holder of the exclusive rights to a film has                   Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations —
transferred an exclusive manufacturing and distribution                 meant that she satisfied, de facto, the conditions rendering
 right in respect of copies of the film in one Member State             her eligible for the installation allowance . The
 from giving consent to the rental of his own releases while            Commission considers that it is clear from the wording of
 at the same time preventing the rental of imported releases            Article 71 of the Staff Regulations, from the heading
 which have been placed on the market in another Member                 under which that article appears in the Staff Regulations
 State, where the holder of exclusive manufacturing and                 and from the title of Section 3 of Annex VII, of which the
 distribution rights in copies of the film has transferred               first subparagraph of Article 5 ( 1 ) forms part, that, like
 ownership of copies with tacit acceptance that the copies              the other allowances covered by Section 3 , the installation
 will be rented out in that latter Member State ?
                                                                         allowance is not a sum automatically added to the salary
                                                                         of the person concerned but is intended to cover expenses
 In view of the fact that Council Directive 92/ 100/EEC ( ] )            actually incurred or which may be incurred. The effect
 of 19 November 1992 on rental right and lending right                   and purpose of the installation allowance also militate in
 and on certain rights relating to copyright in the field of             favour of that interpretation .
 intellectual property has entered into force, the same
 question is repeated on the basis that the Directive is
 applicable to the reply.
  (') OJ No L 346, 27. 11 . 1992, p. 61 .                                Reference for a preliminary ruling by the Hoge Raad der
                                                                         Nederlanden, by judgment of that court of 7 February
                                                                          1997 in the case of 1 . Bayerische Motorenwerke AG and
                                                                                  2 . BMW Nederland BV v. Ronald Karel Deenik
                                                                                                   ( Case C-63/97 )
  Appeal brought on 12 February 1997 by the Commission
  of the European Communities against the judgment                                                   ( 97/C 108/27)
  delivered on 12 December 1996 by the Second Chamber
  of the Court of First Instance of the European                          Reference has been made to the Court of Justice of the
  Communities     in   Case T-33/95        between Maria Lidia            European Communities by judgment of the Hoge Raad
  Lozano Palacios and the Commission of the European                      der Nederlanden ( Supreme Court of the Netherlands ), of
                              Communities                                 7 February 1997, which was received at the Court
                         ( Case C-62/97 P                                 Registry on 13 February 1997, for a preliminary ruling in
                                                                          the case of 1 . Bayerische Motorenwerke AG and 2 . BMW
                             ( 97/C 108/26 )
                                                                          Nederland BV v. Ronald Karel Deenik on the following
                                                                          questions :
   An appeal against the judgment delivered on 12 December
   1996 by the Second Chamber of the Court of First                       ( a ) In view of the fact that, with regard to the rights
   Instance of the European Communities in Case T-33/95                         associated with a trade mark, Directive 89/104/EEC ( J )
   between    Maria     Lidia      Lozano     Palacios   and    the              contains a transitional legal provision only for the
 ---pagebreak--- 5 . 4 . 97                        EN                  Official Journal of the European Communities                                   No C 108/ 15
        purpose of the case described in Article 5 (4 ), are                          to an appreciable extent for the purpose of advertising
        Member States otherwise free to lay down rules on the                         his own business as such by creating a specific
        matter, or does Community law in general, or the                              suggestion of quality ?
        objective and tenor of Directive 89/104/EEC in
        particular, have the effect that Member States are not                   (') OJ No L 40 , 11 . 2 . 1989, p . 1 .
        entirely free in that regard but must comply with
        specific restrictions, and if so which ?
( b ) If someone, without the authorization of the trade                         Action brought on 14 February 1997 by the Commission
        mark proprietor, makes use of that proprietor's trade                    of the European Communities against the Italian Republic
        mark, registered exclusively for specified goods, for                                               ( Case C-64/97)
        the purpose of announcing to the public that he (A )
        carries out repair and maintenance work on the goods                                                  ( 97/C 108/28 )
        which have been placed on the market under that
        trade mark by the proprietor or with his consent, or                     An action against the Italian Republic was brought before
         that he ( B ) is a specialist or is specialized with regard             the Court of Justice of the European Communities on
        to such goods, does this, under the scheme of Article 5                  14 February 1997 by the Commission of the European
         of the Directive, involve :                                             Communities, represented by Paolo Stancanelli, of its
                                                                                 Legal Service, acting as Agents, with an address for service
         (i)       use of the trade mark in relation to goods which              in Luxembourg at the office of Carlos Gomez de la Cruz,
                   are identical to those for which it was registered,           Wagner Centre, Kirchberg.
                   as referred to in Article 5 ( 1 ) ( a );                      The applicant claims that the Court should:
                                                                                 — declare that, by failing to adopt the laws, regulations
         ( ii ) use of that trade mark in relation to services
                   which must be deemed to constitute use of the
                                                                                      or administrative provisions necessary to comply with
                                                                                      Council Directive 93/95/EEC of 29 October 1993
                   trade mark within the meaning of Article 5 ( 1 ) ( a )
                   or use of the trade mark as referred to in Article 5               amending Directive 89/686/EEC on the approximation
                                                                                      of the laws of the Member States relating to personal
                   ( 1 ) ( b ), on the assumption that it can be stated
                                                                                      protective equipment ( PPE ) ( 1 ), the Italian Republic
                   that there is an identity between those services
                                                                                      has failed to fulfil its obligations under the EC Treaty;
                   and the goods for which the trade mark was
                   registered;                                                   — order the Italian Republic to pay the costs.
                                                                                 Pleas in law and main arguments adduced in support:
         ( iii ) use of the trade mark as referred to in Article 5
                   (2 ; or                                                       Under Article 189 of the EC Treaty, according to which a
                                                                                 directive is to be binding, as to the result to be achieved,
          ( iv ) use of the trade mark as referred to in Article 5                upon each Member State to which it is addressed,
                    ( 5 )?                                                        Member States are required to observe the time-limits laid
                                                                                  down in directives for their transposition . That time-limit
                                                                                  expired on 29 January 1994 without the Italian Republic
 (c ) For the purpose of answering Question ( b ), does it                        having brought into force the necessary provisions in
          make any difference whether announcement ( A) or                        order to comply with the Directive referred to in the
          announcement ( B ) is involved ?                                        Commission 's application.
                                                                                  O OJ No L 276 , 9 . 11 . 1993 , p . 11 .
  ( d ) In the light of the provision in Article 7 of the
          Directive, does it make any difference, with regard to
          the question whether the proprietor of the trade mark
          can prevent use of his trade mark registered
          exclusively for specified goods, whether the use                        Reference for a preliminary ruling by the 1 ? Juizo Civel da
          referred to in Question ( b) is that under points ( i ), ( ii ),        Comarca de Lisboa by order of that court of 29 January
           ( iii ) or ( iv )?                                                     1997 in the case of Banco de Fomento e Exterior, SA,
                                                                                  against CTV — Confec^oes Texteis de Vouzela, Lda.,
                                                                                  Amandio Mauricio Martins Pechim and Maria de Luz
   ( e ) On the assumption that both or one of the cases                                           Lima Barros Raposo Pechim
           described at the start of Question ( b ) involve the use
                                                                                                              ( Case C-66/97)
           of the proprietor's trade mark within the meaning of
           Article 5 ( 1 ), whether under Article 5 ( 1 ) ( a ) or ( b ),                                       ( 97/C 108/29
           can the proprietor prevent that use only where the
           person thus using the trade mark thereby creates the                    Reference has been made to the Court of Justice of the
           impression that his undertaking is affiliated to the                    European Communities by order of the 1 ? Juizo Civel da
           trade-mark proprietor's network, or can he also                         Comarca de Lisboa ( Civil Court No 1 , Lisbon ) of
            prevent that use where there is a good chance that the                 29 January 1997, which was received at the Court
            manner in which the trade mark is used for those                       Registry on 17 February 1997, for a preliminary ruling in
            announcements may create an impression among the                       the case of Banco de Fomento e Exterior, SA, against CTV
            public that the trade mark is in that regard being used                — Confeccoes         Texteis       de  Vouzela, Lda ., Amandio