CELEX: C2000/079/09
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-412/99: Action brought on 28 October 1999 by the Commission of the European Communities against the Republic of Austria

C 79/4                 EN                      Official Journal of the European Communities                                     18.3.2000
                   ORDER OF THE COURT                                                         ORDER OF THE COURT
                                                                                                   (First Chamber)
                        (Fourth Chamber)
                                                                                                of 16 December 1999
                     of 16 December 1999                                  in Case C-259/99 P: Karola Gluiber v Council of the
                                                                          European Union and Commission of the European Com-
                                                                                                      munities (1)
in Case C-104/99 (reference for a preliminary ruling                      (Appeal manifestly inadmissible and manifestly unfounded)
from the Commissione Tributaria Provinciale di Brindisi):
Oleifici Italiani SpA v Direzione Regionale delle Entrate
                          per la Puglia (1)                                                         (2000/C 79/08)
                                                                                             (Language of the case: German)
(Article 104(3) of the Rules of Procedure — Manifestly
                        identical question)                               In Case C-259/99 P: Karola Gluiber, residing at Staudernheim
                                                                          (Germany), represented by J-C Schöninger, Rechtsanwalt, Lahr
                                                                          — appeal against the Order of the Court of First Instance of
                                                                          the European Communities, First Chamber, of 5 May 1999 in
                          (2000/C 79/07)
                                                                          Case T-190/08, Karola Gluiber v Council and Commission
                                                                          (not published in the Court Reports), seeking to have that
                                                                          order set aside, the other party to the proceedings being
                                                                          Council of the European Union and Commission of the
                                                                          European Communities — the Court (First Chamber), compo-
                   (Language of the case: Italian)                        sed of L. Sevón, President of the Chamber, P. Jann (Rapporteur)
                                                                          and M. Wathelet, Judges; A. La Pergola, Advocate General;
                                                                          R. Grass, Registrar, made an order on 16 December 1999, the
                                                                          operative part of which is as follows:
In Case C-104/99: reference to the Court under Article 234 EC
from the Commissione Tributaria Provinciale di Brindisi                   1. The appeal is dismissed.
(Provincial Tax Court Brindisi), Italy, for a preliminary ruling
in the proceedings pending before that court between Oleifici             2. Ms Gluiber shall bear her own costs.
Italiani SpA and Direzione Regionale delle Entrate per la Puglia
— on the interpretation of Council Directive 69/335/EEC on
indirect taxes on the raising of capital (OJ, English special             (1) OJ C 299 of 16.10.1999.
edition, 1969 (II), p. 412), as amended by Council Directive
85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) —
the Court (Fourth Chamber), composed of: D.A.O. Edward,
President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm
(Rapporteur), Judges; N. Fennelly, Advocate General; R. Grass,
Registrar, has made an order on 16 December 1999, in which
it has ruled:
                                                                          Action brought on 28 October 1999 by the Commission
                                                                          of the European Communities against the Republic of
Council Directive 69/335/EEC of 17 July 1969 concerning indirect                                        Austria
taxes on the raising of capital, as amended by Council Directive
85/303/EEC of 10 June 1985 does not preclude the levying on                                        (Case C-412/99)
capital companies of a tax such as the tax on companies’ net assets.
                                                                                                    (2000/C 79/09)
(1) OJ C 188 of 3.7.1999.                                                 An action against the Republic of Austria was brought
                                                                          before the Court of Justice of the European Communities
                                                                          on 28 October 1999 by the Commission of the European
                                                                          Communities, represented by Josef Christian Schieferer, of its
                                                                          Legal Service, with an address for service in Luxembourg at
                                                                          the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                          Wagner Centre, Kirchberg.
 ---pagebreak--- 18.3.2000               EN                    Official Journal of the European Communities                                         C 79/5
The applicant claims that the Court should:                              2. If the answer to question 1 is that consent may be implied,
                                                                            is consent to be implied from the fact that the goods have
1. Declare that, by failing to adopt the laws, regulations                  been sold by the proprietor or on his behalf without
    and administrative provisions necessary to comply with                  contractual restrictions prohibiting re-sale within the EEA
    Directive 96/70/EC of the European Parliament and of the                binding the first and all subsequent purchasers?
    Council of 28 October 1996 amending Council Directive
    80/777/EEC on the approximation of the laws of the
    Member States relating to the exploitation and marketing             3. Where goods bearing a registered trade mark have been
    of natural mineral waters (1), and by failing to notify them            placed on the market in a non-EEA country by the trade
    to the Commission, the Republic of Austria has failed to                mark proprietor:
    fulfil its obligations under that directive;
                                                                            A. to what extent is it relevant to or determinative of the
2. Order the Republic of Austria to pay the costs.                               issue of whether or not there was consent by the
                                                                                 proprietor to the placing of those goods on the market
                                                                                 within the EEA, within the meaning of the Directive,
Pleas in law and main arguments                                                  that:
The pleas in law and main arguments correspond to those in                       (a) the person placing the goods on the market (not
Case C-386/99 (2); the period prescribed in Article 2 of the                         being an authorised retailer) does so with the
directive expired on 28 October 1997.                                                knowledge that he is the lawful owner of the goods
                                                                                     and the goods bear no indication that they may
                                                                                     not be placed on the market in the EEA; and/or
(1) OJ L 299 of 23.11.1996, p. 26.
(2) OJ C 366, 18.12.1999, p. 20.
                                                                                 (b) the person placing the goods on the market
                                                                                     (not being an authorised retailer) does so with
                                                                                     knowledge that the trade mark proprietor objects
                                                                                     to those goods being placed on the market within
                                                                                     the EEA, and/or
                                                                                 (c) the person placing the goods on the market (not
Reference for a preliminary ruling by the High Court of                              being an authorised retailer) does so with the
Justice (England & Wales), Chancery Division (Patent                                 knowledge that the trade mark proprietor objects
Court), by order of that court of 22 July 1999, in the case                          to them being placed on the market by anyone
of 1) Levi Strauss & Co. (a US corporation existing under                            otherwise than an authorised retailer; and/or
the laws of the State of Delaware) and 2) Levi Strauss
   (UK) Ltd against 1) Tesco Stores Ltd and 2) Tesco plc                         (d) the goods have been purchased from authorised
                                                                                     retailers in a non-EEA country who have been
                         (Case C-415/99)                                             informed by the proprietor that the proprietor
                                                                                     objects to the sale of the goods by them for the
                                                                                     purposes of resale, but who have not imposed
                          (2000/C 79/10)                                             upon purchasers from them any contractual restric-
                                                                                     tions on the manner in which the goods may be
Reference has been made to the Court of Justice of the                               disposed of; and/or
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division (Patent Court),                     (e) the goods have been purchased from authorised
of 22 July 1999, which was received at the Court Registry on                         wholesalers in non-EEA country, who have been
29 October 1999, for a preliminary ruling in the case of 1)                          informed by the proprietor that the goods were to
Levi Strauss & Co. (a US corporation existing under the laws                         be sold to retailers in that non-EEA country and
of the State of Delaware) and 2) Levi Strauss (UK) Ltd against                       were not to be sold for export, but who have
1) Tesco Stores Ltd and 2) Tesco plc, on the following                               not imposed upon purchasers from them any
questions:                                                                           contractual restrictions on the manner in which
                                                                                     the goods may be disposed of; and/or
1. Where goods bearing a registered trade mark have been
    placed on the market in a non-EEA country by the trade
    mark proprietor or with his consent and those goods have                     (f) there has or has not been communication by the
    been imported into or sold in the EEA by a third party, is                       proprietor to all subsequent purchasers of its goods
    the effect of Directive 89/104/EEC(1) (‘the Directive’) that                     (i.e. those between the first purchaser from the
    the trade mark proprietor is entitled to prohibit such                           proprietor and the person placing the goods on the
    importation or sale unless he has expressly and explicitly                       market in the EEA) of its objection to the sale of
    consented to it, or may such consent be implied?                                 the goods for the purposes of resale; and/or