CELEX: C2000/247/39
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-265/00: Reference for a preliminary ruling by the Benelux Court of Justice by judgment of 26 June 2000 in the case of Campina Melkunie B.V. v Benelux-Merkenbureau

26.8.2000              EN                   Official Journal of the European Communities                                     C 247/25
—     The Commission confirms the finding made in the                  received at the Court Registry on 29 June 2000, for a
      reasoned opinion, to the effect that the subterranean            preliminary ruling in the case of Gründerzentrum-Betriebs-
      waters of the department of the Oise should have been            GmbH against Land Baden-Württemberg on the following
      identified as affected by pollution within the meaning of        question:
      Article 3(1) of the directive.
                                                                       In the case of operations to which Article 4(3) of Directive
                                                                       69/335/EEC (1) refers, are fees for the recording and certifi-
(1) OJ L 375 of 31.12.1991, p. 1.
                                                                       cation of documents by notaries in the civil service of the Land
(2) [1999] ECR I-2603.
                                                                       Baden-Württemberg in the Higher Regional Court District of
                                                                       Karlsruhe caught by the prohibition under Article 10 of that
                                                                       directive so that the fees may be charged only in accordance
                                                                       with the actual costs incurred by the notaries for the service in
                                                                       question?
Reference for a preliminary ruling by the Finanzgericht                (1) OJ, English Special Edition 1969 (II), p. 412.
München by order of that court of 19 April 2000 in
the case of Biochem Zusatzstoffe Handels-Produktions
GmbH v Oberfinanzdirektion Nürnberg, Außenstelle
                             München
                         (Case C-259/00)                               Reference for a preliminary ruling by the Benelux Court
                                                                       of Justice by judgment of 26 June 2000 in the case of
                                                                            Campina Melkunie B.V. v Benelux-Merkenbureau
                         (2000/C 247/37)
                                                                                                 (Case C-265/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht Münch-                                        (2000/C 247/39)
en (Financial Court, Munich) of 19 April 2000, received at the
Court Registry on 28 June 2000, for a preliminary ruling in            Reference has been made to the Court of Justice of the
the case of Biochem Zusatzstoffe Handels- Produktions GmbH             European Communities by judgment of 26 June 2000 by the
v Oberfinanzdirektion Nürnberg, Außenstelle München, on                Benelux Court of Justice, which was received at the Court
the following question:                                                Registry on 29 June 2000, for a preliminary ruling in the case
                                                                       of Campina Melkunie B.V. v Benelux-Merkenbureau (Benelux
Is the combined nomenclature in the version of Annex I to              Trade Marks Office) on the following questions:
Regulation (EC) No 2086/97 (1) (OJ L 312) of 4 November
1997 amending Annex I to Council Regulation (EEC)                      A.   Must Articles 2 and 3(1) of First Council Directive
No 2658/87 (2) on the tariff and statistical nomenclature and               89/104/EEC of 21 December 1988 to approximate the
on the Common Customs Tariff to be interpreted as meaning                   laws of the Member States relating to trade marks (1) be
that immunoglobulin concentrates from dried, defatted and                   construed as meaning that, in determining whether a sign
decaseinated colostrum, standardised by means of lactose, are               consisting of a new word made up of a number of
to be classified as pharmaceutical products in chapter 30?                  component parts has a sufficiently distinctive character
                                                                            to be capable of serving as a mark for the goods in
                                                                            question, one has to proceed on the assumption that this
(1) OJ L 312 of 14.11.1997, p. 1.                                           question is in principle to be answered in the affirmative
(2) OJ L 256 of 7.9.1987, p. 1.                                             even if each of those component parts is in itself devoid
                                                                            of any distinctive character for those goods, and that the
                                                                            position will be different only if there are attendant
                                                                            circumstances, for instance if the new word constitutes
                                                                            an indication, which is obvious and directly comprehen-
                                                                            sible for any person, of a commercially essential combi-
                                                                            nation of properties which cannot be indicated otherwise
Reference for a preliminary ruling by the Amtsgericht                       than through use of the new word?
Mülheim/Baden by order of that court of 20 June 2000 in
the case of Gründerzentrum-Betriebs-GmbH against Land                  B.   If Question A is to be answered in the negative: must it
                      Baden-Württemberg                                     then be assumed that a sign consisting of a new word
                                                                            which is made up of different component parts, each of
                                                                            which is in itself devoid of any distinctive character for
                         (Case C-264/00)
                                                                            the goods in question within the meaning of Article 3(1)
                                                                            of the Directive, is itself also devoid of any distinctive
                         (2000/C 247/38)                                    character, and that the situation may be different only if
                                                                            there are attendant circumstances which result in the
Reference has been made to the Court of Justice of the                      combination of the component parts being greater than
European Communities by order of the Amtsgericht Müllheim/                  the sum of those parts, for instance where the new word
Baden (Local Court, Müllheim/Baden) of 20 June 2000,                        indicates a certain creativity?
 ---pagebreak--- C 247/26                 EN                    Official Journal of the European Communities                                     26.8.2000
C.    Does it make any difference for the answer to Question B                 chemical fertilisers. The provisions invoked by the Luxem-
      whether synonyms exist for each of the component parts                   bourg authorities (relating respectively to the fertiliser
      of the sign, with the result that competitors of the                     trade and to water management and protection) are of
      applicant for registration who wish to make it clear to the              too general a nature and do not provide farmers with
      public that their products too contain the combination of                sufficiently precise information as to the way in which
      qualities indicated by the new word can reasonably also                  they are to operate with regard to the land application of
      do so by using those synonyms?                                           chemical fertilisers with a view to avoiding pollution of
                                                                               surface waters.
(1) OJ 1989 L 40, p. 1.
                                                                          —    (As regards the land application of organic fertilisers in
                                                                               such a way as to take account of sloping ground)
                                                                               Article 5 of the Grand-Ducal regulation of 20 September
                                                                               1994, to which the Luxembourg authorities refer, does
                                                                               not take account of sloping ground independently of
                                                                               climatic conditions, contrary to the obligation laid down
                                                                               in Article 5(4) in conjunction with point 2 in part A
Action brought on 30 June 2000 by the Commission of
                                                                               of Annex II and point 3(a) in Annex III to Directive
the European Communities against the Grand Duchy of
                                                                               91/676/EEC.
                            Luxembourg
                          (Case C-266/00)                                 —    (As regards the land application of organic fertilisers in
                                                                               such a way as to take account of climatic conditions)
                          (2000/C 247/40)
                                                                               Inasmuch as, given the climatic situation in the Benelux
                                                                               countries, it is established that measures are necessary to
An action against the Grand Duchy of Luxembourg was                            limit land application in the event of snow and that there
brought before the Court of Justice of the European Communi-                   exists no objective reason to believe that the feared
ties on 30 June 2000 by the Commission of the European                         pollution risks in the event of land application on snow-
Communities, represented by Michel Nolin, of its Legal Service,                covered ground are lower when the snow conditions last
with an address for service in Luxembourg at the office of                     for less than 24 hours, the provisions of Article 5, point
Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,                 A(1)(a), fourth indent, of the Grand-Ducal regulation of
Kirchberg.                                                                     24 September 1994 must be regarded as contrary to
                                                                               Article 5(4) in conjunction with point 3 in part A of
The Commission of the European Communities claims that                         Annex II to Directive 91/676/EEC.
the Court should:
                                                                          —    (As regards the implementation of adequate monitoring
—     declare that, by failing to adopt all the laws, regulations              programmes)
      and administrative measures necessary in order to comply
      with Article 5(4) and (6) and Article 10(1) in conjunction
      with part A of Annex II, point 3 of Annex III and point                  In the Commission’s view, Luxembourg does not have a
      4(e) of Annex V to Council Directive 91/676/EEC of                       monitoring network covering all its surface waters and
      12 December 1991 concerning the protection of waters                     groundwater subject to intensive farming which permits
      against pollution caused by nitrates from agricultural                   an objective evaluation of the extent of pollution and
      sources (1), the Grand Duchy of Luxembourg has failed to                 of the impact of action programmes, as required by
      fulfil its obligations under that directive;                             Article 5(6) of the directive. More generally, the Com-
                                                                               mission has been provided with no evidence showing the
—     order the Grand Duchy of Luxembourg to pay the costs.                    existence of any monitoring programme. Lastly, the
                                                                               competent authorities have not yet finalised any means
                                                                               of evaluating the effectiveness of the action programmes,
                                                                               and are thus unable to comply with the evaluation
Pleas in law and main arguments                                                obligation provided for in the first subparagraph of
                                                                               Article 5(6) of the directive.
—     (As regards the contents of action programmes and the
      failure to take chemical fertilisers into account)
      The Grand-Ducal regulation of 20 September 1994 is                  (1) OJ L 375 of 31.12.1991, p. 1.
      solely concerned with the use in agriculture of organic
      fertilisers, and the Luxembourg authorities have not
      adopted any provision in order to comply with all the
      obligations laid down in point 1(3) of Annex III and
      part A of Annex II to Directive 91/676/EEC as regards