CELEX: C1997/357/36
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 1 October 1997 by the Commission of the European Communities against the Kingdom of Belgium (Case C-343/97)

C 357/20             EN                  Official Journal of the European Communities                                     22 . 11 . 97
— order the Kingdom of the Netherlands to pay the                    1997, which was received at the Court Registry on
     costs .                                                         1 October 1997, for a preliminary ruling in the case of
                                                                    Lloyd Schuhfabrik Meyer & Co. GmbH v. Kliisen Handel
                                                                    BY on the following questions :
Pleas in law and main arguments adduced in support:
                                                                    1 . Does it suffice, for there to be a likelihood of
                                                                         confusion because of similarity between the sign and
By prohibiting the importation into the Netherlands of                   the trade mark and identity of the goods or services
( young) molluscs from other Member States for the                       covered by the sign and the mark, that the mark and
purposes of their being placed in surface waters ( for                   the sign each consist of a single syllable only, are
example, in order to let them grow there ), the contested                identical in sound both at the beginning and as regards
Regulation has the effect of restricting intra-Community                 the only combination of vowels and the — single —
trade and thus falls within the prohibition contained in                 final consonant of the mark recurs in the sign in
Article 30 of the Treaty.                                                similar form ('t' instead of 'd') in a consonant cluster
                                                                         of three consonants including ' s'; specifically, do the
                                                                         designations ' Lloyd' and 'Loints' for shoes conflict ?
Contrary to - the view taken by the Netherlands
Government, the contested regulation is not justified               2 . What is the significance in this connection of the
pursuant to Article 36 of the Treaty. According to the                   wording of the Directive ( l ) which provides that the
                                                                         likelihood of confusion includes the likelihood of
Netherlands Government, the objective of the contested
Regulation is to prevent the introduction into Netherlands               association between the sign and the trade mark ?
waters of foreign algae ( dinoflagellata ) and of cysts             3 . Must a special distinctive character, and hence an
deriving therefrom ( survival phases ) which may lead to the             extended material scope of protection of a
formation of biotoxins such as paralytic shellfish poison                distinguishing sign, already be taken to exist where
('PSP') in bivalve molluscs. The consumption of bivalve                  there is a degree of recognition of 10% in the relevant
molluscs containing PSP can, according to the Netherlands                trade circles ?
Government, be harmful to human health (giving rise,
inter alia, to symptoms of paralysis and sometimes even                  Would that be the case with a degree of recognition of
death ). According to the Netherlands Government, bivalve                36% ?
molluscs can contain PSP, because they feed on algae
which produce that substance. However, it has not been                   Would such an extension of the scope of protection
proven that the transportation of bivalve molluscs can                   lead to a different answer to question 1 , if that
result in the introduction of PSP-producing dinoflagellata.              question were to be answered by the Court of Justice
There are numerous coastal zones in the Community                        in the negative ?
where PSP-producing dinoflagellata have never been
found, or at any rate not for many years; the importation           4.   Is a trade mark to be taken to have an enhanced
of bivalve molluscs from those regions and their                         distinctive character       simply     because it has      no
introduction into Netherlands waters does not involve any                descriptive elements ?
risk .  The   Commission      therefore considers   that  the
objective pursued by the Netherlands may also be                    (') First Council Directive 89/104/EEC of 21 December 1988 to
achieved by imposing a requirement that imported                        approximate the laws of the Member States relating to trade
                                                                        marks ( OJ L 40, 11 . 2 . 1989, p. 1 ).
consignments of bivalve molluscs may be introduced into
Netherlands waters only if they are accompanied by a
certificate showing that the consignment in question
comes from a coastal zone where PSP-producing
dinoflagellata have never been found, or at any rate not in
the recent past.                                                    Action brought on 1 October 1997 by the Commission of
                                                                    the European Communities against the Kingdom of
                                                                                                   Belgium
                                                                                             ( Case C-343/97)
                                                                                               ( 97/C 357/36 )
Reference for a preliminary ruling from the Landgericht             An action agaist the Kingdom of Belgium was brought
Miinchen I by order of that court of 11 September 1997              before the Court of Justice of the European Communities
in the case of Lloyd Schuhfabrik Meyer & Co. GmbH v.                on 1 October 1997 by the Commission of the European
                     Kliisen Handel BY                              Communities, represented by Gotz zur Hausen, Legal
                                                                    Adviser, acting as Agent, with an address for service in
                      ( Case C-342/97
                                                                    Luxembourg at the office of Carlos Gomez de la Cruz,
                        ( 97/C 357/35 )                             of the Commission 's Legal Service, Wagner Centre,
                                                                    Kirchberg.
                                                                    The Commission claims that the Court should :
Reference has been made to the Court of Justice of the
European Communities by an order of the Landgericht                 — declare that, by failing to adopt all the laws,
Miinchen I ( Munich I Regional Court) of 11 September                    regulations and administrative provisions necessary to
 ---pagebreak--- 22 . 11 . 97              EN                 Official Journal of the European Communities                                     C 357/21
      comply with Council Directive 90/220/EEC of 23 April              DM        Drogeriemarkt            GmbH,    and    Flic    Flac
       1990 on the deliberate release into the environment of           Kinderbekleidungs-Handelsgesellschaft           mbH     against
      genetically modified organisms ('), and Commission                Tiroler Landesregierung ( Government of Tirol ) on the
      Directive 94/5 1/EC of 7 November 1994 adapting to                following questions :
      technical progress Council Directive 90/219/EEC on
      the contained use of genetically modified micro­                  Is Article 33 ( 1 ) of the sixth Council Directive 77/388/
       organisms ( 2), the Kingdom of Belgium has failed to             EEC of 17 May 1977 on the harmonization of the laws of
       fulfil its obligations under those Directives,                   the Member States relating to turnover taxes — Common
                                                                        system of value added tax: uniform basis of assessment (')
                                                                        to be interpreted with regard to the description
— order the Kingdom of Belgium to pay the costs.                        'characterized as turnover taxes' as precluding the
                                                                        imposition on traders by a Member State of a tourism levy
                                                                        ( contribution ) which has the following features :
Pleas in law and main arguments adduced in support:
                                                                        — it is payable by traders with a direct or indirect
                                                                             interest in the tourist industry and therefore by a large
Pleas in law and main arguments correspond to those set                      number of, but not all, traders,
out in Case C-320/97 ('); the period prescribed for
transposition expired on 23 October 1991 ( Directive 90/
220/EEC) and 30 April 1995 (Directive 94/5 1 /EC ).                     — it goes to a local tourist association to finance the
                                                                             development of the tourist industry or to a fund to be
                                                                             used for the whole region ( Land),
(>) OJ L 117, 8 . 5 . 1990 , p . 15 .
( 2 ) OJ L 297, 18 . 11 . 1994, p . 29 .
(•') OJ C 331 , 1 . 11 . 1997, p. 13 .                                  — the basis of assessment is the yearly turnover with
                                                                             certain exceptions, in particular turnover related to
                                                                             services to customers whose place of residence (seat) is
                                                                             outside the area covered by the legislation, in so far as
                                                                             the services are not for a business situated within the
                                                                             area covered by the legislation (a Bundesland of a
                                                                             Member State composed of federal States ) and not
Reference for a preliminary ruling by the Verwaltungs­                       services to final consumers, and turnover related to
gerichtshof (Vienna) by order of that court of 12 August                     other services in so far as they are not supplied
1997 in the case of Wiener Städtische Allgemeine                             exclusively or primarily within the area covered by the
Versicherungs AG, Romed Karl Kleissl, Streiter KG                            legislation ( the Bundesland of the Member State ),
Gasthof 'Post', Alfred Eiter, Stefan Riml, Mag. Josef
Nothdurfter Treuhand- und Steuerberatungsgesellschaft                   — the amount of the levy varies according to the benefit
mbH ( formerly Rasputin Vertriebsgesellschaft mbH ),                         deemed by the legislature to be derived from tourism
Tiroler Röhren- und Metallwerke AG, Elmar Kurz,                              by the sector to which the taxpayer belongs,
Elisabeth Schüller, Anton Gschwentner GesmbH 'Hotel
Schwarzbrunn', Allgemeine Wirtschaftstreuhand- und
Beratungsges. mbH, Kaiserwerke Elektrizitätsversorgungs                 — the amount of the levy is higher in tourist areas than
GesmbH, Miller Optik GesmbH, Michael Khuen-Belasi,                           in others, and
DM Drogeriemarkt GmbH, and Flic Flac Kinder­
bekleidungs-Handelsgesellschaft mbH against Tiroler                     — no provision is made for deduction of input tax ?
                            Landesregierung
                           ( Case C-344/97 )                            (') OJ L 145 , 13 . 6 . 1977, p . 1 .
                             ( 97/C 357/37 )
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsge­                     Action brought on 2 October 1997 by the Federal
richtshof ( Administrative Court), Vienna, of 12 August                 Republic of Germany against the Council of the European
1997, received at the Court Registry on 2 October 1997,                                                   Union
for a preliminary ruling in the case of Wiener Städtische
Allgemeine Versicherungs AG, Romed Karl Kleissl, Streiter                                          (Case C-345/97 )
KG Gasthof ' Post', Alfred Eiter, Stefan Riml, Mag. Josef                                           ( 97/C 357/38 )
Nothdurfter Treuhand- und Steuerberatungsgesellschaft
mbH         ( formerly   Rasputin Vertriebsgesellschaft    mbH ),
Tiroler Röhren- und Metallwerke AG , Elmar Kurz,                        An action against the Council of the European Union was
Elisabeth Schüller, Anton Gschwentner GesmbH ' Hotel                    brought before the Court of Justice of the European
Schwarzbrunn ', Allgemeine Wirtschaftstreuhand- und                     Communities on 2 October 1997 by the Federal Republic
Beratungsges . mbH, Kaiserwerke Elektrizitätsversorgungs                of Germany, represented by Ernst Roder and Claus-Dieter
GesmbH, Miller Optik GesmbH, Michael Khuen-Belasi,                      Quassowski, Federal Economics Ministry, D-53107 Bonn.