CELEX: C2003/019/29
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-417/02: Action brought on 19 November 2002 by the Commission of the European Communities against the Hellenic Republic

C 19/16                EN                    Official Journal of the European Communities                                      25.1.2003
Reference for a preliminary ruling by the Verwaltungsger-                     new securities issued when a company or investment
ichtshof by order of that Court of 6 November 2002 in                         fund is being set up or following the completion of an
the case of Spedition Ulustrans, Uluslararasi Nakliyat ve.                    increase in capital or during a loan issue,
Tic. A.S. Istanbul against Finanzlandesdirektion Oberös-
                             terreich                                         the Kingdom of Belgium has failed to fulfil its obligations
                                                                              under Article 11 of Council Directive 69/335/EEC of
                        (Case C-414/02)                                       17 July 1969 concerning indirect taxes on the raising of
                                                                              capital (1);
                         (2003/C 19/27)
                                                                        —     Order the Kingdom of Belgium to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichtsh-
of (Administrative Court) of 6 November 2002, received at the
Court Registry on 19 November 2002, for a preliminary ruling            Pleas in law and main arguments
in the case of Spedition Ulustrans, Uluslararasi Nakliyat ve.
Tic. A.S. Istanbul against Finanzlandesdirektion Oberösterreich
(Regional Finance Directorate for Upper Austria) on the                 The taxes referred to in the forms of order sought are at
following questions:                                                    variance with Article 11 of the Directive in so far as they are
                                                                        imposed on the delivery to the subscriber and/or the issue of
Does Paragraph 79(2) of the Zollrechtsdurchführungsgesetz               new securities. In those cases, the derogation provided for in
(Act to implement customs law, under which an employer or               Article 12(1)(a) of the Directive, which allows Member States
undertaking incurs liability for a customs debt at the same             to charge duties on the transfer of securities, is not applicable
time as the employee or other person contracted by the                  because such a ‘transfer’ presupposes the existence of a
undertaking incurs liability for the debt, if that person has, in       previous owner of the securities in question.
the discharge of his employer’s or the undertaking’s affairs,
acted unlawfully with regard to customs obligations), widen
the meaning of the term ‘customs debtor’ in a manner that is            (1 ) OJ English Special Edition 1969(II), p. 412.
contrary to Article 202(3) of the Customs Code and therefore
incompatible with Community law?
Action brought on 19 November 2002 by the Com-
mission of the European Communities against the
                      Kingdom of Belgium                                Action brought on 19 November 2002 by the
                                                                        Commission of the European Communities against the
                        (Case C-415/02)                                                          Hellenic Republic
                         (2003/C 19/28)
                                                                                                  (Case C-417/02)
An action against the Kingdom of Belgium was brought                                               (2003/C 19/29)
before the Court of Justice of the European Communities on
19 November 2002 by the Commission of the European
Communities, represented by R. Lyal and Ch. Giolito, acting
as Agents, with an address for service in Luxembourg.
                                                                        An action against the Hellenic Republic was brought before
The Commission of the European Communities claims that                  the Court of Justice of the European Communities on 19 No-
the Court should:                                                       vember 2002 by the Commission of the European Communi-
                                                                        ties, represented by Maria Patakia, Legal Adviser in its Legal
—     Rule that:                                                        Service.
      by imposing the ‘tax on stock-exchange transactions’ on
      applications made in Belgium for new securities issued
      when a company or investment fund is being set up or              The Commission claims that the Court should:
      following the completion of an increase in capital or
      during a loan issue;                                              (a)   declare that,
      by imposing the ’tax on the delivery of securities to the
      holder’ on the substantive issue to the holder of securities            —     by enacting and retaining in force Article 3(1)(c) and
      relating to Belgian or foreign public funds, in the case of                   (2) of Presidential Decree 107/93, and
 ---pagebreak--- 25.1.2003               EN                    Official Journal of the European Communities                                        C 19/17
      —     by accepting the systematic refusal by the Tekhniko          1.   Does retail trading constitute a service within the meaning
            Epimelitirio Elladas (TEE) (Technical Chamber of                  of Article 2 of the Directive?
            Greece), registration with which is an essential
            precondition in order to pursue the profession of                 If the answer to this question should be affirmative:
            architect in Greece, to register Community nationals
            holding non-Greek qualifications which should be             2.   To what extent must the content of such services by a
            recognised under Council Directive 85/384/EEC of                  retailer be specifically stated in order to guarantee the
            10 June 1985 on the mutual recognition of dip-                    certainty of the subject-matter of trade-mark protection
            lomas, certificates and other evidence of formal                  that is required in order to
            qualifications in architecture, including measures
            to facilitate the effective exercise of the right of
            establishment and freedom to provide services (1),                (a)   fulfil the function of the trade mark pursuant to
                                                                                    Article 2 of the Directive, namely distinguishing the
            the Hellenic Republic has failed to fulfil its obli-                    goods or services of one undertaking from those of
            gations under Articles 6(2), 10 and 12 of that                          other undertakings, and
            directive;
(b)   order the Hellenic Republic to pay the costs.                           (b) define the scope of protection of such a trade mark
                                                                                    in the event of a conflict?
Pleas in law and main arguments                                          3.   To what extent is it necessary to define the scope of
                                                                              similarity (Article 4(1)(b) and Article 5(1)(b) of the
                                                                              Directive) between those services by a retailer and
The Commission alleges that the Hellenic Republic has failed
to transpose Directive 85/384 into national law correctly
inasmuch as the Greek legislation lays down: (i) a parallel                   (a)   the other services provided in connection with the
system for contesting diplomas, certificates and other evidence                     sale of goods, or
of formal qualifications beyond that provided for by the
directive (referral to the advisory committee for architecture);              (b) the goods sold by that particular retailer?
and (ii) an obligation on the other Member States beyond that
owed by them under Article 6(1) of the directive.
In addition, the Commission alleges that the defendant has
implemented the directive inappropriately by reason of incor-
rect administrative practice on the part of the Tekhniko
Epimelitirio Elladas (TEE). In its submission, the TEE either
does not examine in due time applications for entry on the
register or does not inform applicants, giving reasons, of the           Appeal brought on 21 November 2002 by Europe Chemi-
refusal to register them.                                                Con (Deutschland) GmbH against the judgment delivered
                                                                         on 12 September 2002 by the Fourth Chamber (Extended
( 1) OJ L 223, 21.8.1985, p. 15.                                         Composition) of the Court of First Instance of the
                                                                         European Communities in case T-89/00 ( 1) between Euro-
                                                                         pe Chemi-Con (Deutschland) GmbH and the Council of
                                                                         the European Union, supported by the Commission of
                                                                                           the European Communities
Reference for a preliminary ruling by the Bundespat-
entgericht by order of that Court of 15 October 2002 in                                         (Case C-422/02 P)
the appeal matter of PRAKTIKER Bau- und Heimwerker-
                            märkte AG
                                                                                                  (2003/C 19/31)
                         (Case C-418/02)
                          (2003/C 19/30)
                                                                         An appeal against the judgment delivered on 12 September
                                                                         2002 by the Fourth Chamber (Extended Composition) of the
Reference has been made to the Court of Justice of the                   Court of First Instance of the European Communities in case
European Communities by order of the Bundespatentgericht                 T-89/00 between Europe Chemi-Con (Deutschland) GmbH
(Federal Patents Court) of 15 October 2002, received at the              and the Council of the European Union, supported by the
Court Registry on 20 November 2002, for a preliminary ruling             Commission of the European Communities, was brought
in the appeal matter of PRAKTIKER Bau- und Heimwerker-                   before the Court of Justice of the European Communities on
märkte AG on the following questions on the interpretation of            21 November 2002 by Europe Chemi-Con (Deutschland)
the First Council Directive 89/104/EEC of 21 December 1988               GmbH, established in Nuremberg (Germany), represented by
to approximate the laws of the Member States relating to trade           K. Adamantopoulos, J. J. Gutiérrez Gisbert and J. Branton,
marks (OJ L 40 1989, p. 1):                                              lawyers, with an address for service in Luxembourg.