CELEX: C1999/299/12
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-298/99: Action brought on 9 August 1999 by the Commission of the European Communities against the Italian Republic

C 299/12               EN                      Official Journal of the European Communities                                    16.10.1999
(Decision 1999/368 — alternatively Decisions 1999/389 and                          in architecture, including measures to facilitate the
1999/449)                                                                          effective exercise of the right of establishment and
                                                                                   freedom to provide services, as amended;
— Breach of the general principle of care: Decision 1999/368                  (2) by adopting Article 4.2.(a) of legislative decree No 129
    was adopted with excessive haste, without any meeting of                       of 27 January 1992 and Article 4.1.(a) of decree
    the Standing Veterinary Committee taking place (even as a                      No 776 of the Ministry for Universities and Scientific
    matter of urgency) and without any actual consultation                         and Technological Research of 10 June 1994 which
    with the competent Belgian authorities. Consequently, the                      lay down a general requirement for the production of
    contested provisions manifestly disregard various scientific                   the original diploma or a certified true copy thereof;
    and factual data which substantially affect the actual health
    risk. The measures taken by the Commission must correctly
    reflect the real level of risk to public health. In that respect,              by adopting Article 4.2.(c) of decree No 129/92 and
    there are two important elements to be borne in mind,                          Article 4.1.(c) of decree No 776/94 which lay down a
    namely (i) the fact that scientific investigation has not                      general requirement for a certificate of nationality;
    conclusively shown that the short-term peak intake of
    dioxins causes significant damage to human health in the                       by adopting Article 4.3 of decree No 129/92 and
    long term, and (ii) the fact that the contamination by                         article 10 of decree No 746/94 which routinely require
    dioxins of compound feedingstuffs for bovine animals and                       an official translation of documents;
    pigs represents a relatively low risk in respect of products
    obtained from those animals, particularly long-fat prod-
    ucts. In particular, in recital (10) in the preamble to                        by adopting Article 11(1)(c) and (d) of decree No
    Decision 1999/449, the Commission overlooks the fact                           129/92, which extends the validity of certificates after
    that the tolerable daily intake recommended by the World                       5.8.1987;
    Health Organisation relates to a norm for a recurring
    intake over the long term which is, as such, of little
    relevance to incidental, short term exposure.                             (3) by prohibiting architects providing services in Italy
                                                                                   from having an infrastructure in Italy (Article 9.1 of
— Breach of the general principle of proportionality: the                          decree No 129/92);
    objective pursued could have been attained by more
    specific and less burdensome measures. In any event,                      (4) by requiring an architect providing services to register
    having regard to the other significant concerns in the                         with the regional professional body for architects
    matters, the contested provisions are excessively stringent.                   (Article 9.3 of decree No 129/92 and Article 7 and 8
                                                                                   of decree No 776/94), contrary to the provisions of
                                                                                   Article 22 of the directive; and
                                                                              (5) by applying Article 4(6) to 4(8) of decree No 129/92
                                                                                   in a manner contrary to Article 20(1) of the directive,
                                                                                   has breached the requirements imposed on it by
Action brought on 9 August 1999 by the Commission of                               Articles 12, 20, 22, 27 and 31 of Directive
  the European Communities against the Italian Republic                            85/384/EEC, and, in respect of point 3 above, by
                                                                                   Article 59 of the EC Treaty (now, after amendment,
                                                                                   Article 49 EC);
                         (Case C-298/99)
                                                                          II. order the Italian Republic to pay the costs.
                         (1999/C 299/12)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 9 August                  Pleas in law and main arguments
1999 by the Commission of the European Communities,
represented by Enrico Traversa, Legal Adviser, and Elisabetta
Montaguti, of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of                  Breaches relating to failure to transpose or
its Legal Service, Wagner Centre, Rue Alcide de Gasperi,                  transpose fully the directive
Kirchberg.
                                                                          — Article 4(1) of the directive was transposed by Article 2.1
The applicant claims that the Court should:
                                                                              of legislative decree No 129/92 which regulates the
                                                                              minimum length of training. However, that decree does
I.  Declare that the Italian Republic                                         not take account of the three year training in the ‘Fach-
                                                                              hochschulen’ of the Federal Republic of Germany.
    (1) by failing to take all the measures necessary to
         implement Articles 4(1), second part, 4(2), 7, 11 and
         14 of Council Directive 85/384/EEC (1) of 10 June                — Article 4(2) of the directive concerning recognition of
         1985 on the mutual recognition of diplomas, certifi-                 training in architecture pursued as part of a social better-
         cates and other evidence of formal qualifications                    ment scheme or a part-time course was not transposed.
 ---pagebreak--- 16.10.1999              EN                   Official Journal of the European Communities                                         C 299/13
— Article 14 of the directive, which lays down specific                 (England & Wales) of 5 May 1999, which was received at the
    provisions for qualifications awarded by the authorities            Court Registry on 9 August 1999, for a preliminary ruling in
    of the former German Democratic Republic, was not                   the case of Philips Electronics NV against Remington Con-
    transposed.                                                         sumer Products Ltd, on the following questions:
— Article 7 was only partly transposed and Article 11 was               1. Is there a category of marks which is not excluded from
    not fully transposed in that no account was taken of the                registration by Articles 3(1)(b)-(d) and Article 3(3) of the
    correction published in the Official Journal L 87 of 2 April            Council Directive 89/104/EEC(1) (‘the Directive’), which is
    1986.                                                                   nonetheless excluded from registration by Article 3(1 )(a)
                                                                            of the Directive (as being incapable of distinguishing the
                                                                            goods of the proprietor from those other undertakings)?
Breaches relating to the incorrect transpo-
sition of the directive
                                                                        2. Is the shape (or part of the shape) of an article (being the
                                                                            article in respect of which the sign is registered) only
(a) Establishment as an architect                                           capable of distinguishing for the purposes of Article 2 if it
                                                                            contains some capricious addition (being an embellishment
    Article 4.2(a) of decree No 129/92 lays down a general                  which has no functional purpose) to the shape of the
    requirement for the production of the original diploma or               article?
    a certified true copy of the diploma of the applicant
    architect. That requirement ought to be reserved for cases
    of doubt over the authenticity of qualifications and is             3. Where a trader has been the only supplier of particular
    contrary to Article 27 of the directive inasmuch as it lays             goods to the market, is extensive use of a sign, which
    down an additional general condition which is neither                   consists of the shape (or part of the shape) of those goods
    appropriate nor justified for the purposes of exercising the            and which does not include any capricious addition,
    right of establishment. The same conclusion is called for               sufficient to give the sign a distinctive character for the
    with regard to the routine requirement for an official                  purposes of Article 3(3) in circumstances where as a result
    translation of documents produced by an applicant archi-                of that use a substantial proportion of the relevant trace
    tect, laid down by Article 4.3 of the decree.                           and public
(b) The provision of services                                               (i) associate the shape with that trader and no other
                                                                                  undertaking;
    Article 9.3 of decree No 129/92, which requires a provider
    of services to register with the regional and the national              (ii) believe that goods of that shape come from that trader
    professional body for architects, clearly exceeds the bounds                  absent a statement to the contrary?
    of the directive and constitutes a wholly unjustified
    obstacle to the provision of occasional service on Italian
    territory.                                                          4. (i) Can the restriction imposed by the words ‘if it consists
                                                                                  exclusively of the shape of goods which is necessary to
    Article 9.1 of that decree prohibits an architect providing                   achieve a technical result’ appearing in Article 3(1)(e)(ii)
    services in Italy from setting up a permanent infrastructure                  be overcome by establishing that there are other shapes
    there. This sort of general and indiscriminate prohibition                    which can obtain the same technical result or
    is not justified by any of the provisions of the directive
    relating to freedom to provide services. Moreover, it is                (ii) is the shape unregistrable by virtue thereof if it is
    contrary to Article 59 of the EC Treaty (now, after                           shown that the essential features of the shape are
    amendment, Article 49 EC).                                                    attributable only to the technical result or
                                                                            (iii) is some other and, if so, what test appropriate for
(1) OJ L 223 of 21.8.1985, p. 15.
                                                                                  determining whether the restriction applies?
                                                                        5. Article 3(1)(c) of the Directive applies to ‘trade marks
                                                                            which consist exclusively of signs or indications which
                                                                            may serve, in trade, to designate the kind, quality, quantity,
                                                                            intended purpose ... of the goods or service’. Article
                                                                            6(1 )(b) of the Directive applies to the use by a third party
Reference for a preliminary ruling by the Court of Appeal                   of ‘indications concerning the kind, quality, quantity,
(England & Wales), by order of that court of 5 May 1999,                    intended purpose ... of goods or services’. The word
in the case of Philips Electronics NV against Remington                     ‘exclusively’ thus appears in Article 3(1)(c) and is omitted
                    Consumer Products Ltd                                   in Article 6(1)(b) of the Directive? On a proper interpret-
                                                                            ation of the Directive, does this omission mean that, even
                                                                            if a mark consisting of the shape of goods is validly
                         (Case C-299/99)                                    registered, it is not infringed by virtue of Article 6(1)(b) in
                                                                            circumstances where
                         (1999/C 299/13)
                                                                            (i) the use of the shape of goods complained of is and
Reference has been made to the Court of Justice of the                            would be taken as an indication as to the kind of goods
European Communities by an order of the Court of Appeal                           or the intended purpose thereof and