CELEX: C2002/131/06
Language: en
Date: 2002-06-01 00:00:00
Title: Case C-82/02: Reference for a preliminary ruling by the Hof van Cassatie by judgment of that Court of 28 February 2002 in the case of Agence Maritime Lalemant against 1. Malzfabrik Tivoli GmbH, 2. Malteurop G.I.E, 3. Belgische Interventie- en Restitutiebureau and Malzfabrik Tivoli GmbH against Belgische Interventie- en Restitutiebureau

1.6.2002               EN                     Official Journal of the European Communities                                        C 131/3
Is a provision of national law, in casu Paragraph 60(1) and (2)          Action brought on 13 March 2002 by the Commission of
of the Markenschutzgesetz (Austrian Law on the Protection of             the European Communities against the Federal Republic
Trademarks), in conjunction with Paragraph 10a thereof,                                            of Germany
which may be interpreted as meaning that the mere transit of
goods manufactured/distributed in contravention of provisions
of the law on trademarks is not punishable under criminal law,                                    (Case C-86/02)
contrary to Article 2 of Council Regulation (EC) No 3295/
94 (1) of 22 December 1994 laying down measures to prohibit                                      (2002/C 131/07)
the release for free circulation, export, re-export or entry for a
suspensive procedure of counterfeit and pirated goods, as
amended by Council Regulation (EC) No 241/1999 (2) of
25 January 1999?
                                                                         An action against the Federal Republic of Germany was
                                                                         brought before the Court of Justice of the European Commu-
                                                                         nities on 13 March 2002 by the Commission of the European
(1) OJ L 341, p. 8.                                                      Communities, represented by Josef Christian Schieferer, of its
(2) OJ L 27, p. 1.                                                       Legal Service, with an address for service in Luxembourg at
                                                                         the office of Luis Escobar Guerrero, of its Legal Service, C 254,
                                                                         Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
                                                                         (1) declare that, by adopting Paragraph 1(6) and Para-
                                                                               graph 1.44 of the SprengÄndG 1997 of 23 June 1998,
Reference for a preliminary ruling by the Hof van Cassatie
                                                                               the Federal Republic of Germany has failed to fulfil its
by judgment of that Court of 28 February 2002 in the
                                                                               obligations, imposed on it by the first paragraph of
case of Agence Maritime Lalemant against 1. Malzfabrik
                                                                               Article 10 and the third paragraph of Article 249 of the
Tivoli GmbH, 2. Malteurop G.I.E, 3. Belgische Interventie-
                                                                               EC Treaty, to comply with Directive 93/15/EEC (1) and
en Restitutiebureau and Malzfabrik Tivoli GmbH against
                                                                               has failed to comply with its obligations arising from the
          Belgische Interventie- en Restitutiebureau
                                                                               first paragraph of Article 226 of the EC Treaty;
                          (Case C-82/02)                                 (2) order the Federal Republic of Germany to pay the costs.
                         (2002/C 131/06)
                                                                         Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by judgment of the Hof van Cassatie                 The Commission objects to the provision whereby explosives,
(Belgian Court of Cassation) of 28 February 2002, received at            apart from those intended for export to, or introduction into,
the Court Registry on 12 March 2002, for a preliminary ruling            another Member State, may only be used or relinquished to
in the case of Agence Maritime Lalemant against 1. Malzfabrik            others if they bear an identification mark issued by the
Tivoli GmbH, 2. Malteurop G.I.E, 3. Belgische Interventie- en            Bundesanstalt für Materialforschung und -prüfung (BAM)
Restitutiebureau and Malzfabrik Tivoli GmbH against Belgische            (Federal Institute for Materials Research and Testing). The fact
Interventie- en Restitutiebureau on the following question:              that, as a result of provisional measures taken by the BAM,
                                                                         that obstacle to trade no longer exists is not enough to cure
                                                                         the infringement of Community law.
Must Article 9(1) of Commission Regulation (EEC) No 2730/
79 (1) of 29 November 1979 laying down common detailed
rules for the application of the system of export refunds on             The transitional provision contained in Paragraph 1.44 of the
agricultural products be interpreted as meaning that goods               German statute could lead to serious distortions of the internal
exported to non-member countries and in respect of which                 market, since explosives which may be freely placed on the
customs export formalities have been completed are to be                 market within the Community pursuant to the provisions of
regarded as having left the geographical territory of the                the directive are not permitted on the German market, whereas
Community when they actually leave the territory of the                  explosives which should no longer feature on the market after
Community or when they are placed in a customs warehouse?                the expiry of the transitional period might be allowed in
                                                                         Germany.
(1) OJ L 317, 1979, p. 1.                                                (1) OJ L 121 of 15.5.1993, p. 20.