CELEX: C2003/135/03
Language: en
Date: 2003-06-07 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 10 April 2003 in Case C-305/00 (Reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main): Christian Schulin v Saatgut-Treuhandverwaltungsgesellschaft mbH (Plant varieties — System of protection — Article 14(3) of Regulation (EC) No 2100/94 and Article 8 of Regulation (EC) No 1768/95 — Use by farmers of the product of the harvest — Obligation to provide information to the holder of the Community right)

C 135/2                  EN                           Official Journal of the European Union                                              7.6.2003
8.    Dismisses the remainder of the application;                             States relating to trade marks, as amended by the Agreement on the
                                                                              European Economic Area of 2 May 1992. However, the requirements
9.    Orders the parties to bear their own costs.                             deriving from the protection of the free movement of goods enshrined,
                                                                              inter alia, in Articles 28 EC and 30 EC may mean that this rule of
                                                                              evidence needs to be qualified. Accordingly, where a third party
( 1) OJ C 246 of 28.08.1999.                                                  succeeds in establishing that there is a real risk of partitioning of
                                                                              national markets if he himself bears that burden of proof, particularly
                                                                              where the trade mark proprietor markets his products in the European
                                                                              Economic Area using an exclusive distribution system, it is for the
                                                                              proprietor of the trade mark to establish that the products were
                                                                              initially placed on the market outside the European Economic Area
                                                                              by him or with his consent. If such evidence is adduced, it is for the
                  JUDGMENT OF THE COURT                                       third party to prove the consent of the trade mark proprietor to
                                                                              subsequent marketing of the products in the European Economic
                                                                              Area.
                           of 8 April 2003
in Case C-244/00 (Reference for a preliminary ruling from                     (1 ) OJ C 247 of 26.8.2000.
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
                                Orth (1)
(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
                                                                                                JUDGMENT OF THE COURT
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the                                                   (Fifth Chamber)
                         market in the EEA)
                                                                                                        of 10 April 2003
                           (2003/C 135/02)
                                                                              in Case C-305/00 (Reference for a preliminary ruling
                    (Language of the case: German)                            from the Oberlandesgericht Frankfurt am Main): Christian
                                                                              Schulin v Saatgut-Treuhandverwaltungsgesellschaft
                                                                                                              mbH (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                              (Plant varieties — System of protection — Article 14(3) of
                                                                              Regulation (EC) No 2100/94 and Article 8 of Regulation
                                                                              (EC) No 1768/95 — Use by farmers of the product of the
In Case C-244/00: Reference to the Court under Article 177                    harvest — Obligation to provide information to the holder
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof                                      of the Community right)
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle                                               (2003/C 135/03)
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and                                             (Language of the case: German)
of Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (OJ 1989 L 40, p. 1), as amended               (Provisional translation; the definitive translation will be published
by the Agreement on the European Economic Area of                                                 in the European Court Reports)
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann                         In Case C-305/00: Reference to the Court under Article 234
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,                  EC by the Oberlandesgericht Frankfurt am Main (Germany) for
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate                  a preliminary ruling in the proceedings pending before that
General; H.A. Rühl, Principal Administrator, for the Registrar,               court between Christian Schulin and Saatgut-Treuhandverwal-
has given a judgment on 8 April 2003, in which it has ruled:                  tungsgesellschaft mbH, on the interpretation of the sixth
                                                                              indent of Article 14(3) of Council Regulation (EC) No 2100/
A rule of evidence according to which exhaustion of the trade mark            94 of 27 July 1994 on Community plant variety rights (OJ
right constitutes a plea in defence for a third party against whom the        1994 L 227, p. 1), and Article 8 of Commission Regulation
trade mark proprietor brings an action, so that the existence of the          (EC) No 1768/95 of 24 July 1995 implementing rules on
conditions for such exhaustion must, as a rule, be proved by the third        the agricultural exemption provided for in Article 14(3) of
party who relies on it, is consistent with Community law and, in              Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
particular, with Articles 5 and 7 of First Council Directive 89/104/          (Fifth Chamber), composed of: M. Wathelet, President of the
EEC of 21 December 1988 to approximate the laws of the Member                 Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr
 ---pagebreak--- 7.6.2003                EN                           Official Journal of the European Union                                               C 135/3
(Rapporteur) and A. Rosas, Judges; D. Ruiz-Jarabo Colomer,                   the Convention of 27 September 1968 on Jurisdiction and the
Advocate General; H.A. Rühl, Principal Administrator, for the                Enforcement of Judgments in Civil and Commercial Matters by
Registrar, has given a judgment on 10 April 2003, in which it                the Landesarbeitsgericht München (Germany) for a preliminary
has ruled:                                                                   ruling in the proceedings pending before that court between
                                                                             Giulia Pugliese and Finmeccanica SpA, Alenia Aerospazio
                                                                             Division, on the interpretation of Article 5(1) of the abovemen-
The provisions of the sixth indent of Article 14(3) of Council               tioned Convention of 27 September 1968 (OJ 1978 L 304,
Regulation (EC) No 2100/94, of 27 July 1994, on Community
                                                                             p. 36), as amended by the Convention of 9 October 1978 on
plant variety rights in conjunction with Article 8 of Commission             the Accession of the Kingdom of Denmark, Ireland and the
Regulation (EC) No 1768/95 of 24 July 1995 implementing rules
                                                                             United Kingdom of Great Britain and Northern Ireland (OJ
on the agricultural exemption provided for in Article 14(3) of
                                                                             1978 L 304, p. 1 and — amended version — p. 77), by the
Regulation No 2100/94 cannot be construed as meaning that the                Convention of 25 October 1982 on the Accession of the
holder of a Community plant variety right can require a farmer to
                                                                             Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention
provide the information specified in those provisions where there is no      of 26 May 1989 on the Accession of the Kingdom of Spain
indication that the farmer has used or will use, for propagating             and the Portuguese Republic (OJ 1989 L 285, p. 1), the Court,
purposes in the field, on his own holding, the product of the harvest
                                                                             composed of: D.A.O. Edward acting as President of the Fifth
obtained by planting, on his own holding, propagating material of a          Chamber, A. La Pergola, P. Jann (Rapporteur), S. von Bahr and
variety other than a hybrid or synthetic variety which is covered by
                                                                             A. Rosas, Judges; F.G. Jacobs, Advocate General; H.A. Rühl,
that right and belongs to one of the agricultural plant species listed       Principal Administrator, for the Registrar, has given a judgment
in Article 14(2) of Regulation No 2100/94.                                   on 10 April 2003, in which it has ruled:
( 1) OJ C 302 of 21.10.2000.
                                                                             1.    Article 5(1) of the Convention of 27 September 1968 on
                                                                                   Jurisdiction and the Enforcement of Judgments in Civil and
                                                                                   Commercial Matters, as amended by the Convention of 9 Octo-
                                                                                   ber 1978 on the Accession of the Kingdom of Denmark,
                                                                                   Ireland and the United Kingdom of Great Britain and Northern
                 JUDGMENT OF THE COURT                                             Ireland, by the Convention of 25 October 1982 on the
                                                                                   Accession of the Hellenic Republic and by the Convention of
                                                                                   26 May 1989 on the Accession of the Kingdom of Spain and
                          (Fifth Chamber)                                          the Portuguese Republic, must be interpreted as meaning that,
                                                                                   in a dispute between an employee and a first employer, the place
                         of 10 April 2003                                          where the employee performs his obligations to a second
                                                                                   employer can be regarded as the place where he habitually
                                                                                   carries out his work when the first employer, with respect to
in Case C-437/00 (Reference for a preliminary ruling from                          whom the employee’s contractual obligations are suspended,
the Landesarbeitsgericht München): Giulia Pugliese v                               has, at the time of the conclusion of the second contract of
      Finmeccanica SpA, Alenia Aerospazio Division (1)                             employment, an interest in the performance of the service by the
                                                                                   employee to the second employer in a place decided on by the
                                                                                   latter. The existence of such an interest must be determined on
(Brussels Convention — Article 5(1) — Court for the place
                                                                                   a comprehensive basis, taking into consideration all the
of performance of the contractual obligation — Contract of
                                                                                   circumstances of the case.
employment — Place where the employee habitually carries
out his work — First contract fixing the place of performance
of the work in one Contracting State — Second contract
concluded with reference to the first contract and under
which the employee carries out his work in another Con-                      2.    Article 5(1) of the Brussels Convention must be interpreted as
tracting State — First contract suspended during the per-                          meaning that, in matters relating to contracts of employment,
                      formance of the second)                                      the place where the employee carries out his work is the only
                                                                                   place of performance of an obligation which can be taken into
                                                                                   consideration in order to determine which court has jurisdiction.
                          (2003/C 135/04)
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published       (1 ) OJ C 61 of 24.2.2001.
                   in the European Court Reports)
In Case C-437/00: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of