CELEX: C1997/387/14
Language: en
Date: 1997-12-20 00:00:00
Title: Reference for a preliminary ruling from the Oberster Gerichtshof, Austria, by order of that court of 7 October 1997 in the case of (1) The Polo/Lauren Company LP and (2) Poloco SA v. Jürgen Denz, trading as Jeans & More (Case C-370/97)

20 . 12 . 97            EN                  Official Journal of the European Communities                                          C 387/9
     — it has not adopted the necessary measures to                    to ensure that the waste is disposed of without
          ensure that waste is disposed of without                     endangering human health and without harming the
          endangering human health and without harming                 environment, and in particular without risk to water, air,
          the environment, and in particular without risk to           soil and plants and animals, without causing a nuisance
          water, air, soil and plants and animals, without             through noise or odours, and without adversely affecting
          causing a nuisance through noise or odours, and              the countryside or places of special interest.
          without adversely affecting the countryside or
          places of special interest, in breach of Article 4 of
          Directive 75/442/EEC (') ( or Article 4 of Directive         The Commission also considers that the competent
          75/442/EEC as amended by Directive 91 / 156/                 authorities designated in accordance with Article 5 of the
          EC (2 ), which substantially reproduces the                  directive as originally worded (Article 6 of the amended
          provisions thereof),                                         directive ) have not fulfilled their obligations concerning
                                                                       the organization, authorization and supervision of waste
                                                                        disposal operations in the area in question, as is apparent
     — the competent authorities designated in accordance               from the continuing poor state of the S. Rocco valley.
          with Article       5 of Directive 75/442/EEC        (or
          Article 6 of Directive 75/442/EEC as amended
           by Directive 91 /156/EC, which substantially
           reproduces the provisions thereof) have not                  The Commission also concludes that, in so far as waste
           fulfilled their obligations concerning the                   continues to be tipped into the riverbed in question, the
           organization, authorization and supervision of               competent authorities have failed to supervise the
           waste disposal operations in the area in question,           undertakings transporting, collecting, storing, tipping or
           in breach of Article 5 of Directive 75/442/EEC ( or          treating their own waste and that of third parties, in
           Article 6 of Directive 75/442/EEC as amended by              breach of the obligations imposed by Article 10 of
           Directive 91 / 156/EC ),                                     Directive 75/442/EEC as originally worded (or Article 13
                                                                        of Directive 75/442/EEC as amended ).
     — the competent authorities have not fulfilled
           their obligation of supervising undertakings                 As regards, finally, the existence of a pit used for fly
           transporting, collecting, storing, tipping or treating       tipping, the Commission, although aware of the criminal
           their own waste and those which collect or                    proceedings instituted against the concessionaire, has
           transport waste on behalf of third parties, in                never been informed of the progress of those proceedings.
            breach of Article 10 of Directive 75/442/EEC (or
            Article 13 of Directive 75/442/EEC as amended by
                                                                         (') OJ L 194, 25 . 7 . 1975 , p . 47; EE 15 F1 p . 129 .
            Directive      91 /156/EC,    which      substantially       ( 2 ) OJ L 78 , 26 . 3 . 1991 , p . 32 .
            reproduces the provisions thereof),
      — it has not taken the necessary measures to ensure
            that, with regard to a pit in the tufa located in the
            S. Rocco riverbed area, used for fly tipping in the
            past, the concessionaire responsible for that pit has
            the waste handled by a private or public waste               Reference for a preliminary ruling from the Oberster
            collector or by a disposal undertaking, in breach             Gerichtshof, Austria, by order of that court of 7 October
            of the first indent of Article 7 of Directive 75/442/         1997 in the case of ( 1 ) The Polo/Lauren Company LP and
            EEC ( or the first indent of Article 8 of Directive               ( 2 ) Poloco SA v. Jürgen Denz, trading as Jeans & More
             75/442/EEC as amended by Directive 91 /156/EC,                                             Case C-370/97 )
             which substantially reproduces the provisions
             thereof),                                                                                   ( 97/C 387/14 )
 — Order the Italian Republic to pay the costs.                            Reference has been made to the Court of Justice of the
                                                                           European Communities by an order of the Fourth Senate
                                                                           of the Oberster Gerichtshof ( Supreme Court), Austria, of
                                                                           7 October 1997, which was received at the Court Registry
  Pleas in law and main arguments adduced in support:                      on 27 October 1997, for a preliminary ruling in the case
                                                                            of ( 1 ) The Polo/Lauren Company LP and ( 2 ) Poloco SA v.
                                                                           Jiirgen Denz, trading as Jeans & More, on the following
  With regard to the pollution caused by the tipping of                     questions :
  waste from the area upstream of the S. Rocco valley, the
  Commission considers that the Italian authorities have
  infringed Article 4 of Directive 75/442/EEC as originally                 Is Article 7 ( 1 ) of the First Council Directive 89/104/EEC
  worded (Article 4 of the amended directive ) in that they                 of 21 December 1988 to approximate the laws of the
  have failed to adopt, in that area , all the measures needed               Member States relating to trade marks ( OJ L 40, 11 . 12 .
 ---pagebreak--- C 387/ 10                EN                  Official Journal of the European Communities                                       20 . 12 . 97
1989 , p. 1 , 'the Trade Mark Directive') to be interpreted                     The Italian Republic states that the aid is, all in all ,
as meaning that the trade mark entitles its proprietor to                       of an extremely modest amount. Apart from the very
prohibit a third party from using the mark for goods                            limited extent of the aid, which in itself is indicative
which have been put on the market under that mark in a                          of the fact that it is hardly likely to have any impact
State which is not a Contracting State ?                                        on Community trade or competition, it is noteworthy
                                                                                that no mention is or has been made of any such
                                                                                impact;
May the proprietor of the trade mark on the basis of
Article 7 ( 1 ) of the Trade Mark Directive alone seek an
order that the third party cease using the trade mark for
goods which have been put on the market under that                      ( b ) Incorrect exclusion of the permitted derogations,
mark in a State which is not a Contracting State ?                              without reasons being given: infringement and
                                                                                misapplication of Article 92 ( 3 ) ( c ) of the EC Treaty
                                                                                and of Article 3 ( 1 ) ( d ) of Council Regulation ( EEC )
                                                                                No 1107/70 of 4 June 1970 ( 2 ).
                                                                                The Commission states that the derogations provided
      Action brought on 28 October 1997 by the Italian                          for by both the above provisions are inapplicable .
      Republic against the Commission of the European                           However, rather than giving a definitive ruling of
                             Communities
                                                                                incompatibility, the Commission merely expresses
                          ( Case C-372/97)                                      doubts concerning legality and then concludes,
                                                                                without a proper and logical statement of reasons,
                            ( 97/C 387/ 15 )                                    that the derogations are unavailable;
An action against the Commission of the European                         (c)     Incorrect description of the measures as ' new' aid.
Communities was brought before the Court of Justice on
                                                                                 The fact that the measures concerned predate the
28 October 1997 by the Italian Republic, represented by
Oscar Fiumara, Avvocato dello Stato, with an address for
                                                                                 1981 Law and the 1985 Law and were thus adopted
                                                                                 before the entry into force of the Community
service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adelaide .
                                                                                 legislation which liberalized the carriage of goods by
                                                                                 road by way of cabotage by opening up the sector to
                                                                                 competition implies that such measures, where they
                                                                                 are regarded as ' aid', should be described as 'existing
The applicant claims that the Court should:                                      aid '.
— annul in its entirety the decision of the Commission of
      the European Communities of 30 July 1997 (C ( 97 )                         The Commission, having treated the measures in
      2735 final ) ( M ,                                                         question as new aid, and, as a result, as being subject
                                                                                 to the procedure provided for in Article 93 ( 3 ), and
                                                                                 having in consequence adopted a decision declaring
                                                                                 the measures to be unlawful and incompatible,
— in the alternative, annul the part of that decision                            expressly requiring the funds to be repaid to the
      ( Article 5 ) which imposes the obligation to recover the                  State, a serious infringement of essential procedural
      aid granted as from 1 July 1990, plus interest,                            requirements has been committed rendering the
                                                                                 decision invalid, at least in so far as it requires
                                                                                 recovery the aid paid;
 — in both cases, order the Commission of the European
      Communities to pay the costs.
                                                                          ( d ) Infringement of the principle of the protection of
                                                                                  legitimate expectations and the principle of
 Pleas in law and main arguments adduced in support:
                                                                                  reasonableness as regards the instruction that aid
                                                                                  paid as from 1 July 1990 be recovered . Since the aid
                                                                                  has been paid for many years, the requirement of
 (a )   Incorrect classification of the measures as aid .                         recovery is inimical to the principles of the protection
        The measures provided for by Regional Law No 4/                           of legitimate expectations and legal certainty. It is
        1985 cannot be regarded as constituting prohibited                        inconceivable that the State and economic operators
        aid, for two reasons: they do not affect intra­                           themselves could, in 1981 and then in 1985 , foresee
        Community trade and they are not liable to have any                       that the aid, which at that time was granted as a
        impact on competition .                                                   matter of routine, would so many years later be