CELEX: C2000/006/34
Language: en
Date: 2000-01-08 00:00:00
Title: Case C-414/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division (Patent Court), by order of that court of 24 June 1999, in the case of Zino Davidoff SA against A & G Imports Ltd

C 6/18                  EN                     Official Journal of the European Communities                                       8.1.2000
Reference for a preliminary ruling by the Immigration                     The questions exclusive to the Baumbast
Appeal Tribunal, London, by order of that court of                        case
28 May 1999, in the case of Baumbast and ‘R’ against
          Secretary of State for the Home Department
                                                                          Question 3
                          (Case C-413/99)                                 (a) On the facts of Mr. Baumbast’s case, does he, as an EU
                                                                               citizen, enjoy a directly effective right of residence in
                                                                               another EU Member State pursuant to article 18 (ex article
                           (2000/C 6/33)                                       8a) of the Treaty of Rome in circumstances where he no
                                                                               longer enjoys rights of residence as a worker under article
Reference has been made to the Court of Justice of the                         39 (ex article 48) of the Treaty of Rome, and does not
European Communities by an order of the Immigration Appeal                     qualify for residence in the host state under any other
Tribunal, London, of 28 May 1999, which was received at the                    provision of EU law?
Court Registry on 28 October 1999, for a preliminary ruling
in the case of Baumbast and ‘R’ against Secretary of State for            (b) If so, are his wife and children consequently able to enjoy
the Home Department, on the following questions:                               derivative residence, employment and other rights?
                                                                          (c) If so, do they do so on the basis of articles 11 and 12 of
                                                                               Regulation 1612/68 or some other (and if so, which)
Question 1                                                                     provision of EU law?
(a) Are children of a citizen of the European Union who are               Question 4
     themselves such citizens and who have installed themselves
     in primary education during the exercise by their father (or         (a) Assuming that the preceding question is answered in the
     parent) of rights of residence as a worker in another                     EU citizen’s disfavour, do that person’s family members
     member state of which he is not a national (’the host state’)             retain the derivative rights that they, as such members,
     entitled to reside in the host state in order to undergo                  originally acquired upon being installed in the UK with a
     general educational courses there, pursuant to article 12 of              worker?
     Council Regulation 1612/68? (1)
                                                                          (b) If so, what are the conditions that apply?
(b) Insofar as the answer to the preceding question may vary
     in circumstances where:                                              (1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
                                                                              on freedom of movement for workers within the Community (OJ
     (i) their parents are divorced;                                          L 257 of 19.10.1968, p. 2) (SE SER1 68/II) p. 475).
     (ii) only one parent is a citizen of the European Union and
           that parent has ceased to be a worker within the host
           state;
     (iii) the children are not themselves citizens of the Euro-
           pean Union;                                                    Reference for a preliminary ruling by the High Court of
                                                                          Justice (England & Wales), Chancery Division (Patent
                                                                          Court), by order of that court of 24 June 1999, in the case
     what criteria are to be applied by the national authorities?                of Zino Davidoff SA against A & G Imports Ltd
                                                                                                   (Case C-414/99)
Question 2
                                                                                                    (2000/C 6/34)
Where children have the right to reside in a host state in order
to undergo general education courses pursuant to article 12 of            Reference has been made to the Court of Justice of the
Council Regulation 1612/68, is the obligation of the host state           European Communities by an order of the High Court of
to ‘encourage all efforts to enable such children to attend these         Justice (England & Wales), Chancery Division (Patent Court),
courses under the best possible conditions’ to be interpreted             of 24 June 1999, which was received at the Court Registry on
as entitling their primary carer, whether or not a citizen of the         29 October 1999, for a preliminary ruling in the case of Zino
Union, to reside with them in order to facilitate such a right            Davidoff SA against A & G Imports Ltd, on the following
notwithstanding:                                                          questions:
                                                                          (A) Insofar as the Directive (1) refers to goods being put on the
(i) their parents are divorced; or                                             market in the Community with the consent of the pro-
                                                                               prietor of a mark, is it to be interpreted as including
(ii) the father who is a citizen of the European Union ceases                  consent given expressly or implicitly and directly or
     to be a worker within the host state?                                     indirectly.
 ---pagebreak--- 8.1.2000               EN                    Official Journal of the European Communities                                         C 6/19
(B) Where:                                                                   (ii) offending against      the   provisions  of   Directive
                                                                                  76/768/EEC (2).
    (i) a proprietor has consented to or allowed goods to be
                                                                        (1) First Council Directive 89/104/EEC of 21 December 1988 to
         placed in the hands of a third party in circumstances
                                                                            approximate the laws of the Member States relating to trade
         where the latter’s rights to further market the goods              marks (OJ L 40, 11.2.1989, p. 1).
         are determined by the law of the contract of purchase          (2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-
         under which that party acquired the goods, and                     mation of the laws of the Member States relating to cosmetic
                                                                            products (OJ L 262, 27.9.1976, p. 169).
    (ii) said law allows the vendor to impose restrictions on
         the further marketing or use of the goods by the
         purchaser but also provides that, absent the imposition
         by or on behalf of the proprietor of effective restrictions
         on the purchaser’s right to further market the goods,
         the third party acquires a right to market the goods in
         any country, including the Community,
                                                                        Action brought on 29 October 1999 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                                      Austria
    then, if restrictions effective according to that law to limit
    the third party’s rights to market the goods have not been
    imposed, is the Directive to be interpreted so as to treat                                   (Case C-424/99)
    the proprietor as having consented to the right of the
    third party acquired thereby to market the goods in the                                        (2000/C 6/35)
    Community.
                                                                        An action against the Republic of Austria was brought
(C) If the answer to question (B) is in the affirmative, is it for      before the Court of Justice of the European Communities
    the national courts to determine whether, in all the                on 29 October 1999 by the Commission of the European
    circumstances, effective restrictions were imposed on the           Communities, represented by Josef Christian Schieferer, of its
    third party.                                                        Legal Service, acting as Agent, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, also of
                                                                        its Legal Service, Wagner Centre C 254, Kirchberg.
(D) Is Article 7(2) of the Directive to be interpreted. in such a
    way, that legitimate reasons for the proprietor to oppose           The applicant claims that the Court should:
    further commercialisation of his goods include any actions
    by a third party which affect to a substantial extent the           1. Declare that, by failing to adopt the laws, regulations and
    value, allure or image of the trade mark or the goods to                 administrative provisions necessary to comply in full with
    which it is applied.                                                     Council Directive 89/105/EEC of 21 December 1988
                                                                             relating to the transparency of measures regulating the
                                                                             pricing of medicinal products for human use and their
(E) Is Article 7(2) of the Directive to be interpreted in such a             inclusion in the scope of national health insurance sys-
    way that legitimate reasons for the proprietor to oppose                 tems (1), and by failing to inform the Commission thereof,
    further commercialisation of his goods include the removal               the Republic of Austria has failed to fulfil its obligations
    or obliteration by third parties (in whole or in part) of any            under that directive;
    markings on the goods where such removal or obliteration
    is not likely to cause any serious or substantial damage to         2. Order the Republic of Austria to pay the costs of the
    the reputation of the trade mark or the goods bearing the                proceedings.
    mark.
                                                                        Pleas in law and main arguments
(F) Is Article 7(2) of the Directive to be interpreted in such a
    way that legitimate reasons for the proprietor to oppose            Contrary to the view taken by Austria, the Commission
    further commercialisation of his goods include the removal          submits that the bodies responsible for operating the Austrian
    or obliteration by third parties (in whole or in part) of           health service (Hauptverband der Sozialversicherungsträger)
    batch code numbers on the goods where such removal or               (Principal Association of Social Insurance Institutions) must be
    obliteration results in the goods in question                       treated as being State authorities for the purposes of the
                                                                        directive and that the inventory of medicines published by the
                                                                        abovementioned Hauptverband pursuant to Paragraph 31(3),
    (i) offending against any part of the criminal code of a            no 12, in conjunction with Paragraph 133(2), of the Allge-
         Member State (other than a part concerned with trade           meines Sozialversicherungsgesetz (General Law on Social
         marks) or                                                      Security Insurance) (‘ASVG’) is a positive list within the