CELEX: C2001/200/95
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-196/01: Action brought on 8 May 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg

14.7.2001             EN                     Official Journal of the European Communities                                      C 200/53
—    Infringement of Article 1(4) of Directive 91/689/EEC:              4.    Article 12 of the Trade Marks Directive provides that a
     Under the first indent of Article 1(4), a precise and                    trade mark shall be ‘liable’ to revocation in specified
     uniform definition of hazardous waste, required for                      circumstances. When those circumstances exist, must the
     application of the directive, is achieved by reference to                court revoke the trade mark, or does the court retain any
     Annexes I, II and III to the directive and the list of                   discretion as to whether to revoke?
     hazardous waste to be drawn up in accordance with the
     procedure laid down in Article 18. It follows that, in their
     legislation to transpose the directive, the Member States          (1) OJ L 40, 11.2.1989, p. 1.
     must take those annexes and that list as a basis for
     determining the field of application of their national
     provisions. The list, which is contained in Council
     Decision 94/904/EC, supplements the provisions of the
     directive on hazardous waste.
     The possibility for the Member States to adopt stricter
     protective measures in fields harmonised by Community              Action brought on 8 May 2001 by the Commission of the
     environmental provisions is not to be equated with an              European Communities against the Grand Duchy of
     option not to transpose such harmonisation measures.                                          Luxembourg
                                                                                                 (Case C-196/01)
(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.                                                                   (2001/C 200/95)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice on 8 May 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        H. Støvlbaek and J. Adda, acting as Agents, with an address for
                                                                        service in Luxembourg.
Reference for a preliminary ruling by the House of Lords,               The applicant claims that the Court should:
by order of that court of 4 April 2001, in the case of                  —     declare that the Grand Duchy of Luxembourg has failed
Scandecor Development AB and others against Scandecor                         to comply with its obligations under Article 1(a) of
                   Marketing AB and another                                   Council Directive 75/442/EEC of 15 July 1975 on
                                                                              waste (1), as amended by Council Directive 91/156 EC of
                        (Case C-195/01)                                       18 March 1991 (2) and Commission Decision 94/3/EC of
                                                                              20 December 1993 establishing a list of wastes pursuant
                                                                              to Article 1(a) of Council Directive 75/442/EEC on
                        (2001/C 200/94)                                       waste (3);
Reference has been made to the Court of Justice of the                  —     order the Grand Duchy of Luxembourg to pay the costs.
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor           Pleas in law and main arguments
Development AB and others against Scandecor Marketing AB
and another, on the following questions:
                                                                        —     Although the Grand Duchy of Luxembourg was obliged,
                                                                              under the fourth paragraph of Article 249 EC, to
1.   Is a trade mark to be regarded as liable to mislead the
                                                                              incorporate the European Waste Catalogue (EWC), for-
     public within the meaning of article 12(2)(b) of Council
                                                                              ming the subject-matter of Decision 94/3/EC, into its
     Directive No 89/1104/EEC (1) of 21 December 1988 to
                                                                              national law, it has simply reproduced it in a ministerial
     approximate the laws of the Member States relating to
                                                                              circular which is binding on the administrative authorities
     trade marks (the ‘Trade Marks Directive’) if the origin of
                                                                              but not on third parties.
     the goods denoted by the mark is a bare exclusive
     licensee?                                                          —     At the same time, the Grand Duchy of Luxembourg
                                                                              introduced a nomenclature applying purely to Luxem-
2.   What are the criteria to be applied in determining whether               bourg, which is totally different from the EWC. Various
     a trading relationship comprises a single undertaking for                operations in respect of which use of the EWC is
     the purposes of the Trade Marks Directive?                               precluded are linked to the implementation of national
                                                                              measures designed to transpose the Community legis-
3.   Is a company a person for the purpose of article 6(1)(a)                 lation on waste. In addition, the coexistence of two lists
     of the Trade Marks Directive?                                            (the Luxembourg nomenclature and the EWC) between
 ---pagebreak--- C 200/54               EN                    Official Journal of the European Communities                                         14.7.2001
      which there is no unequivocal correlation has the effect          Justice (England & Wales), Queen’s Bench Division (Commer-
      of increasing the risk of confusion and classification            cial Court) of 13 November 2000, which was received at the
      errors. A Member State may not plead the mere concept             Court Registry on 30 May 2001, for a preliminary ruling in
      of ‘national management’ in order to be authorised to             the case of Joseph Lennox (trading as R. Lennox & Son) against
      derogate from the applicable Community legislation,               Industria Lavorazione Carni Ovine, on the following questions:
      inasmuch as there is no way of telling how the manage-
      ment of waste in Luxembourg relates to ‘specific needs’
      which are not covered by the relevant Community rules.
                                                                        1.    (a)  Where a consignment of sheep is exported from one
(1) OJ L 194 of 25.7.1975, p. 39.                                                  Member State to another Member State and the
(2) OJ L 78 of 26.3.1991.                                                          sheep are for slaughter on arrival, is the requirement
(3) OJ L 5 of 7.1.1994, p. 15.                                                     under Article 9 of Directive 91/68/EEC (1) complied
                                                                                   with where the accompanying health certificate is
                                                                                   not a Model I certificate, as in Annex E thereof, but
                                                                                   is a Model II certificate?
Reference for a preliminary ruling by the Corte di Appello
di Firenze by order of that court of 23 January 2001 in                       (b) If the answer to Question 1(a) is No, so that the
the case of Altair Chimica SpA against ENEL Distribuzione                          consignment must be accompanied only by a Mo-
                                SpA                                                del I certificate, does the responsibility for identifying
                                                                                   the correct certificate prior to export rest on the
                                                                                   exporter or on the recipient of the sheep, or is it for
                         (Case C-207/01)                                           the applicable national law of the contract to
                                                                                   determine which party bears this responsibility?
                         (2001/C 200/96)
Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello
                                                                              (c)  Where a consignment of sheep is exported from one
(Court of Appeal), Florence, by order of 23 January 2001,
                                                                                   Member State to another Member State and the
received at the Court Registry on 18 May 2001, for a
                                                                                   sheep are for slaughter on arrival and where the
preliminary ruling in the case of Altair Chimica SpA v ENEL
                                                                                   accompanying health certificate is a Model II certifi-
Distribuzione SpA on the exact interpretation of Articles 81,
                                                                                   cate, is the national law of the State of destination
82 and 85 of the Treaty establishing the European Community,
                                                                                   entitled to make the importation unlawful on the
of Directive 92/12/EEC (1) and Council Recommendation
                                                                                   ground that the certificate is not a Model I certificate?
81/924/EEC of 27 October 1981, in order to ascertain whether
the provisions of national law laid down in Legislative Decrees
No 347/44 and No 896/47, Presidential Decree No 373/94,
Legislative Decree No 98/48 and Law No 9/91 are incompat-
ible with those provisions of Community law.                            2.    (a)  In July 1997, was it compatible with Community
                                                                                   law, in particular Articles 28-30 EC (ex Articles 30-
                                                                                   36) and/or Article 152 EC (ex 129 of the EC Treaty)
(1) Council Directive 92/12/EEC of 25 February 1992 on the general                 and/or Articles 6 and 174 EC (from ex 130r of the
    arrangements for products subject to excise duty and on the                    EC Treaty) and Council Directives 89/662/EEC (2),
    holding, movement and monitoring of such products (OJ 1992
    L 76, of 23 March 1992, p. 1).
                                                                                   90/425/EEC (3) and 91/68/EEC, for a Member State
                                                                                   to require that the health certificates required pursu-
                                                                                   ant to Article 9 of Directive 91/68/EEC include the
                                                                                   following declaration: ‘The animals referred to in
                                                                                   this certificate were born and raised on farms
                                                                                   in which no case of Transmissible Spongiform
                                                                                   Encephalopathy (TSE) has been registered in the last
Reference for a preliminary ruling by the High Court                               6 years.’?
of Justice (England & Wales), Queen’s Bench Division
(Commercial Court), by order of that court of 13 Novem-
ber 2000, in the case of Joseph Lennox (trading as
R. Lennox & Son) against Industria Lavorazione Carni                          (b) If the answer to Question 2(a) is No, where the
                               Ovine                                               exporter has otherwise fulfilled its obligations under
                                                                                   the applicable law of the contract to deliver the
                         (Case C-220/01)                                           sheep to the recipient’s place of business, is a
                                                                                   national court required, in civil proceedings between
                         (2001/C 200/97)                                           the exporter and the recipient concerning their
                                                                                   contractual rights and obligations regarding the
Reference has been made to the Court of Justice of the                             importation of the sheep, to ignore any obligations
European Communities by an order of the High Court of                              under the national law of the Member State of