CELEX: C2000/233/24
Language: en
Date: 2000-08-12 00:00:00
Title: Case C-145/00: Action brought on 17 April 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

12.8.2000               EN                   Official Journal of the European Communities                                        C 233/13
Ltd against Swingward Ltd, Boehringer Ingelheim AG and                        (a)   does that requirement apply to all such cases of the
Boehringer Ingelheim Pharma AG against Dowelhurst Ltd,                              trade mark, including in advertising, re-labelling and
Glaxo Group Ltd against Dowelhurst Ltd, SmithKline Beecham                          repackaging or, if only some uses, which?
plc, Beecham Group plc and SmithKline & French Laboratories
Ltd against Dowelhurst Ltd and Eli Lilly & Company against                    (b) must the importer or dealer give notice to the
Dowelhurst Ltd, on the following questions:                                         proprietor or is it sufficient that the proprietor
                                                                                    receives such notice?
1.    Can a proprietor of a trade mark use his trade mark rights
      to stop or hinder the import of his own goods from one                  (c)   how much notice must be given.
      Member State into another or to hinder their subsequent
      marketing or promotion when the importation, marke-               8.    Is a national court of a Member State entitled, at the suit of
      ting or promotion causes no, or no substantial, harm to                 the proprietor of trade mark rights, to order injunctions,
      the specific subject matter of his rights?                              damages, delivery up and other relief in respect of
                                                                              imported goods or the packaging or advertisements
                                                                              therefor where the making of such an order (a) stops or
2.    Is the answer to the previous question different if the                 impedes the free movement of goods placed upon the
      ground relied on by the proprietor is that the importer or              market within the EC by the proprietor or with his
      subsequent dealer is using his mark in a way which,                     consent but (b) is not for the purpose of preventing harm
      although not prejudicial to its specific subject matter, is             to the specific subject matter of the rights and does not
      not necessary?                                                          help to prevent such harm?
3.    If an importer of the proprietor’s goods or a dealer in
      such imported goods needs to show that his use of the
      proprietor’s mark is ‘necessary’, is that requirement met
      if it is shown that the use of the mark is reasonably
      required to enable him to access (a) part only of the
      market in the goods, or (b) the whole of the market in
      the goods; or does it require that the use of the mark was
      essential to enabling the goods to be placed on the market        Action brought on 17 April 2000 by the Commission of
      and if none of these, what does ‘necessary’ mean?                 the European Communities against the Kingdom of the
                                                                                                   Netherlands
4.    If the proprietor of a mark is, prima facie, entitled to
      enforce his national trade mark rights against any use of                                  (Case C-145/00)
      his mark on or in relation to goods which is not
      necessary, is it abusive conduct and a disguised restriction
      on trade in accordance with the second sentence of                                         (2000/C 233/24)
      Article 30 of the Treaty, to use that entitlement in order
      to hinder or exclude parallel imports of his own goods            An action against the Kingdom of the Netherlands was
      which do not threaten the specific subject matter or              brought before the Court of Justice on 17 April 2000 by the
      essential function of the trade mark?                             Commission of the European Communities, represented by
                                                                        K. Banks and C. Van Der Hauwaert, of its Legal Service, acting
                                                                        as Agents, with an address for service in Luxembourg at the
5.    Where an importer or someone dealing in imported
                                                                        office of C. Gómez de la Cruz, of its Legal Service, Wagner
      goods intends to use the proprietor’s trade mark on or in
                                                                        Centre, Kirchberg.
      relation to those goods and such use does and will not
      prejudice the specific subject matter of the mark, must he
      nevertheless give the proprietor advance notice of his            The applicant claims that the Court should:
      intended use of the mark?
                                                                        —     declare that, by failing within the prescribed period to
6.    If the answer to the previous question is in the affirmative,           adopt the laws, regulations and administrative measures
      does that mean that failure of the importer or dealer to                necessary in order to implement the provisions of
      give such notice has the effect of entitling the proprietor             Directive 97/36/EC (1) of the European Parliament and of
      to restrain or hinder the importation or further commerci-              the Council of 30 June 1997 amending Council Directive
      alisation of those goods even though such importation or                89/552/EEC (2) on the coordination of certain provisions
      further commercialisation will not prejudice the specific               laid down by law, regulation or administrative action in
      subject matter of the mark?                                             Member States concerning the pursuit of television
                                                                              broadcasting activities, the Kingdom of the Netherlands
                                                                              has failed to comply with its obligations under the Treaty.
7.    If an importer or someone dealing in imported goods                     However, this application has no bearing on the adoption
      must give prior notice to the proprietor in respect of uses             of the measures required in consequence of the amend-
      of the trade mark which do not prejudice the specific                   ments made by Article 1 of Directive 97/36/EC to
      subject matter of the mark,                                             Articles 10 to 19 inclusive of Directive 89/552;
 ---pagebreak--- C 233/14               EN                     Official Journal of the European Communities                                         12.8.2000
—     order the Kingdom of the Netherlands to pay the costs.             Handelsgericht (Regional Court, sitting as Commercial Court),
                                                                         Wels, Austria, of 9 May 2000, which was received at the Court
                                                                         Registry on 15 May 2000, for a preliminary ruling in the
Pleas in law and main arguments                                          company register proceedings brought by Lutz Gesellschaft
                                                                         mbH, Dr Richard Seifert, Dr Andreas Seifert, Dr Johann Georg
On the basis of Articles 10 and 249 EC and of Article 2 of               Schelling, Walter Kaltenecker, Werner Kneidinger and Günther
Directive 97/36/EC, the Kingdom of the Netherlands was                   Gruber on the following questions:
required by no later than 30 December 1998 to bring into
force the laws, regulations and administrative measures neces-
sary in order to comply with the directive.                              1.   Do the measures provided for in Article 2(1)(f) of First
                                                                              Directive 68/151/EEC (1) and Article 47 of Fourth Directi-
                                                                              ve 78/660/EEC (2) regarding the disclosure obligation on
(1) OJ 1998 L 6, p. 43.                                                       capital companies infringe Article 44(2)(g) EC, which
(2) OJ 1989 L 298, p. 23.                                                     confers power to coordinate the safeguards which, for
                                                                              the protection of the interests of members and creditors,
                                                                              are required by Member States of companies?
                                                                         2.   Do the measures provided for in Article 2(1)(f) of First
                                                                              Directive 68/151/EEC and Article 47 of Fourth Directive
Reference for a preliminary ruling by the Arbeidshof te                       78/660/EEC regarding the disclosure obligation on capital
Antwerpen, Hasselt Division, by order of that court of                        companies infringe Article 44(2)(g) EC, in that they are
4 May 2000 in the case of M.-J. Verwayen-Boelen against                       not necessary to eliminate restrictions on establishment
            Rijksdienst voor Arbeidsvoorziening                               or to attain other objectives of the EEC Treaty (in
                                                                              particular the establishment of uniform general legal
                          (Case C-175/00)                                     requirements)?
                         (2000/C 233/25)                                 3.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
                                                                              in conjunction with Article 47 of Fourth Directive
Reference has been made to the Court of Justice of the                        78/660/EEC compels undertakings to reveal business
European Communities by order of the Arbeidshof te Antwer-                    secrets by imposing the obligation to disclose the balance
pen (Labour Court Antwerp), Hasselt Division, of 4 May 2000,                  sheet and the profit and loss account for each financial
received at the Court Registry on 10 May 2000, for a                          year on pain of a penalty, and that the protective objective
preliminary ruling in the case of M.-J. Verwayen-Boelen                       provided for can be adequately attained by other — less
against Rijksdienst voor Arbeidsvoorziening on the following                  intrusive — measures, compatible with the general legal
question:                                                                     principle of proportionality?
Must Article 4(1) of Regulation (EEC) No 1408/71, according              4.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
to which that regulation applies to branches of social security,              in conjunction with Article 47 of Fourth Directive
be interpreted as meaning that a scheme such as the RWW                       78/660/EEC compels undertakings to reveal business
scheme, which has characteristics both of social security and                 secrets by imposing the obligation to disclose the balance
of social assistance, falls within the scope of that regulation, so           sheet and the profit and loss account for each financial
that the period during which an employed person receives                      year on pain of a penalty, and that the protective objective
benefits under this scheme can qualify as an insurance period                 provided for can be adequately attained by other — less
which is to be taken into account when assessing whether that                 intrusive — measures, compatible with the fundamental
person can have entitlement to unemployment benefits in                       right to property in Community law?
Belgium?
                                                                         5.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
                                                                              in conjunction with Article 47 of Fourth Directive
                                                                              78/660/EEC compels undertakings to reveal business
                                                                              secrets by imposing the obligation to disclose the balance
                                                                              sheet and the profit and loss account for each financial
Reference for a preliminary ruling from the Landesgericht                     year on pain of a penalty, and that the protective objective
Wels by order of that court of 9 May 2000 in the company                      provided for can be adequately attained by other — less
register proceedings brought by Lutz Gesellschaft mbH,                        intrusive — measures, compatible with the fundamental
Dr Richard Seifert, Dr Andreas Seifert, Dr Johann Georg                       right of freedom to pursue an economic activity in
Schelling, Walter Kaltenecker, Werner Kneidinger and                          Community law?
                         Günther Gruber
                          (Case C-182/00)
                                                                         (1) OJ, English Special Edition 1968 (I), p. 41.
                                                                         (2) OJ 1978 L 222, p. 11.
                         (2000/C 233/26)
Reference has been made to the Court of Justice of the
European Communities by an order of the Landes- als