CELEX: C2003/304/16
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-403/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 22 July 2003 in the case of Egon Schempp against Finanzamt München V

13.12.2003              EN                        Official Journal of the European Union                                           C 304/11
      Statements on Articles 3 and 12: With regard to the                 (c)   the intermediary has a right of contribution or recourse
      interpretation of Articles 2 and 10, the Council and the                  against the producer (Paragraph 11(3) of the Danish law
      Commission are in agreement that there is nothing to                      on liability for defective products)?
      prevent individual Member States from laying down in
      their national legislation rules regarding liability for
      intermediaries, since intermediary liability is not covered         Question 5
      by the Directive. There is further agreement that under
      the Directive the Member States may determine rules on
      the final mutual apportionment of liability among several           Does the Directive (Council Directive 85/374/EEC of 25 July
      liable producers (see Article 3) and intermediaries; and            1985 on the approximation of the laws, regulations and
                                                                          administrative provisions of the Member States concerning
                                                                          liability for defective products) preclude a Member State from
2.    Article 13 of the Directive, which provides that:                   maintaining a non-statutory, but case-law-based, rule, which
                                                                          existed before the Directive on liability for defective products,
      ‘This Directive shall not affect any rights which an injured        relating to liability for defective products under which the
      person may have according to the rules of the law of                intermediary — without himself being the producer or treated
      contractual or non-contractual liability or a special liab-         as a producer under Article 3 of the Directive — is responsible
      ility system existing at the moment when this Directive is          for:
      notified’,
                                                                          —     the producer’s liability for defective products under the
does the Directive preclude a Member State from laying down                     Directive on liability for defective products,
legal rules on intermediary liability for defective products
where the intermediary is, as occurred in [Paragraph 3(1)] of             —     the producer’s fault-based liability established in case-law
the Danish law on liability for defective products, defined as                  in respect of liability for defective products resulting in
any person who, in the course of his business, puts a product                   personal injury or damage to consumers’ property,
into circulation without being deemed to be the producer
under the definition thereof in Article 3 of the Directive on             where the case-law-based rule concerned requires that:
liability for defective products?
                                                                          (a)   the intermediary be defined as any person who, in the
                                                                                course of his business, puts a product into circulation
                                                                                without being deemed to be the producer ([Para-
                                                                                graph 3(3)] of the Danish law on liability for defective
Question 4                                                                      products);
                                                                          (b) the producer can be held liable and the intermediary
Does the Directive (Council Directive 85/374/EEC of 25 July                     therefore does not bear responsibility where the producer
1985 on the approximation of the laws, regulations and                          is not held liable (Paragraph 10 of the Danish law on
administrative provisions of the Member States concerning                       liability for defective products);
liability for defective products) preclude a Member State from
laying down a legal rule relating to liability for defective              (c)   the intermediary has a right of contribution or recourse
products, under which the intermediary — without himself                        against the producer (Paragraph 11(3) of the Danish law
being the producer or treated as a producer under Article 3 of                  on liability for defective products)?
the Directive — is responsible for:
                                                                          (1) OJ L 210 of 7.8.1985, p. 29.
—     the producer’s liability for defective products under the
      Directive,
—     the producer’s fault based-liability established in case-law
      in respect of liability for defective products resulting in
                                                                          Reference for a preliminary ruling by the Bundesfinanz-
      personal injury or damage to consumers’ property,
                                                                          hof by order of that Court of 22 July 2003 in the case of
                                                                                  Egon Schempp against Finanzamt München V
where the legal rule in question requires that:                                                     (Case C-403/03)
(a)   the intermediary be defined as any person who, in the                                         (2003/C 304/16)
      course of his business, puts a product into circulation
      without being deemed to be the producer ([Paragraph
      3(3)] of the Danish law on liability for defective products);       Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Bundesfinanzhof
(b) the producer can be held liable and the intermediary                  (Federal Finance Court) of 22 July 2003, received at the Court
      therefore does not bear responsibility where the producer           Registry on 29 September 2003, for a preliminary ruling in
      is not held liable (Paragraph 10 of the Danish law on               the case of Egon Schempp against Finanzamt München V on
      liability for defective products);                                  the following questions:
 ---pagebreak--- C 304/12              EN                         Official Journal of the European Union                                         13.12.2003
1.   Is Article 12 of the EC Treaty (as amended by the                        territory of a Member State, of original branded goods
     Treaty of Amsterdam) to be interpreted as meaning that                   (bearing a trade mark within the meaning of the afore-
     Paragraph 1a(1)1, Paragraph 10(1)1 of the Einkommen-                     mentioned directive, the UBL and/or Regulation No 40/
     steuergesetz, to the effect that a taxpayer resident in                  94) which have not been introduced into the EEA by the
     Germany is not entitled to deduct maintenance payments                   proprietor of the trade mark or with his consent, which
     to his divorced spouse resident in Austria whereas he                    come from outside the EEA and which have the customs
     would be entitled to do so were she still resident in                    status of non-Community goods (for example, T 1 or
     Germany, is incompatible therewith?                                      AAD)?
2.   If Question 1 is answered in the negative: is
     Article 18(1)EC to be interpreted as meaning that Para-             (3) Does it make any difference to the answers to Ques-
     graph 1a(1)1, Paragraph 10(1)1 of the Einkommensteuer-                   tions (1) and (2) whether or not, at the time of entering
     gesetz, to the effect that a taxpayer resident in Germany                the abovementioned territory, the final destination of
     is not entitled to deduct maintenance payments for his                   those goods is specified, or that no (purchase) agreement
     divorced spouse resident in Austria whereas he would be                  has or has yet been concluded with a customer in a third
     entitled to do so were she still resident in Germany, is                 country in respect of those goods?
     incompatible therewith?
                                                                         (4) In the context of answering Questions (1), (2) and (3), is
                                                                              it relevant whether there are additional circumstances,
                                                                              such as
                                                                              (a)   the circumstance that the trader, who is the owner
Reference for a preliminary ruling by the Gerechtshof te                            of the goods in question or in any event is entitled
’s-Gravenhage by order of that Court of 28 August 2003                              to dispose of them and/or engages in parallel trade,
in the proceedings between Class International BV and                               is established in one of the Member States;
1. Colgate-Palmolive Company, 2. Unilever NV, 3. Smith-
      kline Beecham PLC, and 4. Beecham Group PLC
                                                                              (b) the circumstance that those goods are being offered
                        (Case C-405/03)                                             for sale or sold by the trader established in a Member
                                                                                    State, from that Member State, to another trader
                                                                                    established in a Member State, whilst the place of
                        (2003/C 304/17)                                             delivery is not (yet) specified;
                                                                              (c)   the circumstance that those goods are being offered
Reference has been made to the Court of Justice of the                              for sale or sold by the trader established in a Member
European Communities by order of the Gerechtshof te                                 State, from that Member State, to another trader
’s-Gravenhage (Regional Court of Appeal, The Hague) of                              established in a Member State, whilst the place of
28 August 2003, received at the Court Registry on 29 Septem-                        delivery of the goods to be offered for sale or sold in
ber 2003, for a preliminary ruling in the proceedings between                       that way is specified but the final destination is not,
Class International BV and 1. Colgate-Palmolive Company,                            whether or not with the expressly statement or
2. Unilever NV, 3. Smithkline Beecham PLC, and 4. Beecham                           contractual restriction that the goods involved are
Group PLC on the following questions:                                               non-Community (transit) goods;
(1) May the proprietor of a trade mark oppose the introduc-
     tion without his consent of goods from third countries,                  (d) the circumstance that those goods are being offered
     bearing a trade mark within the meaning of the directive                       for sale or sold by the trader established in a Member
     and/or of Regulation No 40/94 (1), into the territory of a                     State to a trader established outside the EEA, whilst
     Member State (in this case the territory of the Netherlands/                   the place of delivery and/or final destination of the
     Benelux countries) in the context of transit or transit                        goods may or may not be specified;
     trade as referred to below?
(2) Does ‘using [a sign] in the course of trade’ within                       (e)   the circumstance that those goods are being offered
     the meaning of the opening words of Article 5(1) in                            for sale or sold by the trader established in a Member
     conjunction with Article 5(3)(b) and (c) of the directive                      State to a trader established outside the EEA, who
     and the opening words of Article 9(1) in conjunction                           the (parallel) trader knows or has serious reason to
     with Article 9(2)(b) and (c) of Regulation No 40/94 cover                      suppose will resell or supply the goods in question
     the storing, in a customs office or warehouse within the                       to ultimate consumers within the EEA?