CELEX: C1998/072/16
Language: en
Date: 1998-03-07 00:00:00
Title: Reference for a preliminary ruling from the Hof van Beroep, Ghent, by order of that court of 18 December 1997 in the case of Openbaar Ministerie v. D.R.C. Schacht and others (Case C-3/98)

7.3.98               EN                   Official Journal of the European Communities                                           C 72/9
industries is prohibited and providing that aid to the steel         the case of aid for other purposes it stated (at
industry, whether specific or non-specific, financed by              paragraph 51):
Member States . . . may be deemed Community aid and
therefore compatible with the orderly functioning of the
common market only if it satisfies certain prescribed                the Aid Code is intended only to authorise generally, and
conditions for specified categories of aid, can the                  subject to certain conditions, derogations from the
Commission       lawfully     make     individual    Decisions       prohibition of aid for certain categories which it lists
authorising the grant of State aid which does not fall               exhaustively . . . Aid not falling into categories which the
within any of those categories?                                      Code exempts from that prohibition thus remain subject
                                                                     exclusively to Article 4(c). It follows that where such aid
                                                                     nevertheless proves necessary to attain the objectives of
                                                                     the Treaty, the Commission is empowered to rely on
The Appellant submits that that answer to the question is
                                                                     Article 95 of the Treaty in order to deal with that
No'. The Aid Code in force at the material time was the
                                                                     unforeseen situation, if need be by means of an individual
Fifth Steel Aid Code adopted on 27 November 1991 by
                                                                     decision.'
Commission Decision 3855/91/ECSC (3). Article 1
provided that
                                                                     The Appellant submits that the statement is incorrect. The
                                                                     principle whereby the Commission is not empowered to
Aid to the steel industry, whether specific or non-specific,        authorise State aid to the steel industry in such a situation
financed by Member States or their regional or local                 may be characterised as a case of lack of competence.
authorities or through State resources in any form
whatsoever may be deemed Community aid and therefore
compatible with the orderly functioning of the common                (1) concerning aid to be granted by Spain to the public integrated
                                                                         steel company Corporación de la Siderurgia Integral (OJ L 112,
market only if it satisfied the provisions of Articles 2 to 5'.
                                                                         3.5.1994, p. 58).
                                                                     (2) concerning aid to be granted by Italy to the public steel sector
                                                                         (Ilva group) (OJ L 112, 3.5.1994, p. 64).
                                                                     (3) OJ L 362, 31.12.1991, p. 57.
Articles 2 to 5 provided that aid might be considered
compatible with the common market when granted for
research and development (Article 2), environmental
protection (Article 3), closures (Article 4) and general
regional aid schemes in Greece, Portugal and the former
GDR (Article 5).
                                                                     Reference for a preliminary ruling from the Hof van
                                                                     Beroep, Ghent, by order of that court of 18 December
By its Decisions 94/258/ECSC and 94/259/ECSC of                      1997 in the case of Openbaar Ministerie v. D.R.C.
12 April 1994, the Commission purported to authorise aid                                    Schacht and others
to the Italian and Spanish public steel industries which fell
outside the provisions of Articles 2 to 5. The purpose of                                     (Case C-3/98)
the Fifth Steel Aid Code was to prohibit the authorisation                                     (98/C 72/16)
of such aid; and it was not open to the Commission to
authorise it, during the currency of the Code, without any
amendment of the latter. This answer is compelled by
practical as well as legal considerations. If the                    Reference has been made to the Court of Justice of the
Commission could authorise individual grants of State aid,           European Communities by an order of the Hof van
in the face of the terms of the Aid Code, the prohibition            Beroep (Court of Appeal) of 18 December 1997, which
contained in that Code would be ineffective: indeed, it              was received at the Court Registry on 9 January 1998, for
would be writ in water'.                                            a preliminary ruling in the case of Openbaar Ministerie
                                                                     (Office of the Public Prosecutor) v. D.R.C. Schacht on the
                                                                     following question:
The Court of First Instance, on the other hand, concluded
(at paragraph 50 of the judgment) that
                                                                     Must Article 14a(1)(a) in conjunction with Article 1(a)(i)
                                                                     of Council Regulation (EEC) No 1408/71 on the
                                                                     application of social security schemes to employed
the [Fifth Steel Aid] Code constitutes a binding legal              persons, to self-employed persons and to members of their
framework only for the types of aid enumerated by it                 families moving within the Community be interpreted as
which are compatible with the Treaty'.                               meaning that a normally self-employed person who is
                                                                     temporarily working in another Member State, retains his
                                                                     status as a self-employed person during the period of the
                                                                     continuing application to him of the legislation of the
(that is, aid for research and development, environmental            Member State in which he usually works, in accordance
protection, closures and general regional aid schemes). In           with the provisions of the applicable legislation, so that it
 ---pagebreak--- C 72/10              EN                  Official Journal of the European Communities                                    7.3.98
is not open to the Member State in which he is                          If the answer to Question 2 is in the affirmative, the
temporarily working to regard work carried out on its                   following further questions are raised:
territory as salaried employment, or must those provisions
be interpreted as meaning that it is open to the latter State
to regard that temporary work as salaried employment in
order to bring the person concerned on that ground within           3. Does the determination whether the legislation of non-
its legislation on employed persons?                                    member country or countries in question offers the
                                                                        guarantee of reciprocity referred to in Question 2 fall
                                                                        within the scope of Article 177 of the Treaty
                                                                        establishing the European Community so that a court
                                                                        in a Member State is entitled or even, according to the
                                                                        circumstances, bound to refer a question to the Court
                                                                        of Justice?
Reference for a preliminary ruling by Sù- og                            If the answer to Question 3 is in the affirmative, the
Handelsretten, Copenhagen, by order of that court of                    following further questions are raised:
3 December 1997 in the cases of Calvin Klein Trademark
Trust v. Cowboyland A/S, Dansk Supermarked
Administration A/S, HBN Marketing ApS, Progress, in the
    person of Peter Jensen, and Bilka Lavprisvarehus A/S            4. Should the trade mark legislation in the United States
                                                                        of America be regarded as offering the guarantee of
                        (Case C-4/98)                                   reciprocity referred to in Question 2?
                         (98/C 72/17)
                                                                        Lastly, if the answer to Question 1 is in the negative
                                                                        and/or Question 2 is answered in the affirmative, the
                                                                        following final question is raised:
Reference has been made to the Court of Justice of the
European Communities by an order of Sù- og
Handelsretten (Maritime and Commercial Court) of
3 December 1997, which was received at the Court                    5. Should the term legitimate reasons' in Article 7(2) of
Registry on 12 January 1998, for a preliminary ruling in                the said Directive be understood as meaning that the
the cases of Calvin Klein Trademark Trust v. Cowboyland                 proprietor of a trade mark may oppose use of the
A/S and Others, on the following questions:                             mark in a Member State on goods which have been
                                                                        marketed in a non-member country by the proprietor,
                                                                        or with his consent, when those goods are different in
                                                                        design, fit, colour, labelling information, handling of
                                                                        the material used, sewing and similar ways from
1. Does Article 7(1) of the First Council Directive of                  equivalent goods marketed by the proprietor of the
     21 December 1988 to approximate the laws of the                    mark, or with his consent, in the Member State in
     Member States relating to trade marks (89/104/                     question or in other Member States?
     EEC) (1) preclude the individual Member States from
     maintaining, introducing or reintroducing a general
     rule in their national trade mark legislation to the           (1) OJ L 40, 11.2.1989, p. 1.
     effect that the proprietor of a trade mark may not
     prevent the use of the trade mark in that Member
     State for goods which have been put on the market
     under that mark by the proprietor of the mark
     himself, or with his consent, in a non-member country,
     in other words outside the Community area?
                                                                    Reference for a preliminary ruling from the Tribunal de
                                                                    Grande Instance, AngouleÃme (First Civil Chamber) by
                                                                    judgment of that court of 8 January 1998 in the case of
2. Are the courts in a Member State entitled to preclude
                                                                    SA Otor Godard v. Directeur des Services Fiscaux de la
     the proprietor of a trade mark from preventing the use
                                                                                                Charente
     in the Member State of the mark for goods which
     have been put on the market under that mark by the                                      (Case C-5/98)
     proprietor of the mark himself, or with his consent, in
     a non-member country whose trade mark legislation                                        (98/C 72/18)
     guarantees that the proprietor of the mark is precluded
     from preventing the use of a mark in the non-member
     country in question for goods which have been put on
     the market for the first time by the proprietor of the         Reference has been made to the Court of Justice of the
     mark himself, or with his consent, in a Member State?          European Communities by a judgment of the First Civil