Commission of the European Communities v French Republic.
Date: 2000-09-26
22 In that regard, French legislation authorises the national customs authorities, on an application from the proprietor of the right in designs of spare parts for motor vehicles, to detain spare parts presumed to be counterfeit goods for a period of 10 days during which the applicant may refer the matter to the competent national courts. The Court is bound to conclude that such detention, which delays the movement of goods and, if the competent court rules that they are to be confiscated, may block their movement completely, has the effect of restricting the free movement of goods.
23 That finding cannot be affected by the French Government's argument that the detention procedure does not restrict trade between Member States since it does not apply solely to the entry of goods into French territory but may be initiated against spare parts found anywhere in that territory. By reason of the fact that detention applies, in particular, to goods coming from or being sent to other Member States, it has a restrictive effect on trade between Member States and constitutes in principle a measure having an effect equivalent to a quantitative restriction on imports, contrary to Article 30 of the Treaty.
33 It must, however, be remembered that, although Article 14 of Directive 98/71 authorises Member States to maintain in force their legislation relating to the protection of the designs of spare parts referred to by that article, that possibility exists only to the extent that the national legislation is compatible with the rules of the Treaty. Article 14 of that directive cannot have the effect of validating all the national provisions on the protection of the rights concerned. As the 20th recital in the preamble to Directive 98/71 states, national legislation must, in any event, be consistent with the rules of the Treaty relating to the free movement of goods.
37 In order to answer the question whether detention under customs control of goods in transit, as provided for under the French legislation, is justified by the exception referred to in Article 36 of the Treaty relating to industrial and commercial property, it is necessary to take account of the purpose of that exception, which is to reconcile the requirements of the free movement of goods and the right of industrial and commercial property, by avoiding the maintenance or establishment of artificial barriers within the common market. Article 36 allows derogations from the fundamental principle of the free movement of goods within the common market only to the extent to which such derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of such property (see, inter alia, Case C-10/89 CNL-SUCAL v HAG [1990] ECR I-3711, paragraph 12; and Case C-61/97 FDV v Laserdisken [1998] ECR I-5171, paragraph 13).
38 As far as design rights are concerned, certain restrictions on the free movement of goods have been allowed on the basis of Article 36 of the Treaty, where their purpose was to protect the specific subject-matter of the right of industrial and commercial property (see, to that effect, Case 53/87 CICRA and Others v Renault [1988] ECR 6039, paragraph 11).
39 It is clear from the case-law of the Court that the right of the proprietor of a protected design to prevent third parties from manufacturing and selling or importing, without his consent, products incorporating the design forms part of the specific subject-matter of his right (see, in particular, Case 238/87 Volvo v Veng [1988] ECR 6211, paragraph 8).
42 As far as that submission is concerned, it should be observed that manufacture, sale and importation involve use by the third party of the appearance of the product which the design right seeks to protect. Authorisation given to a third party to manufacture or market identical parts and, consequently, to use the appearance of the original design will thus normally give rise to the payment of fees to the proprietor of the right.
43 Intra-Community transit, on the other hand, consists in the transportation of goods from one Member State to another across the territory of one or more Member States and involves no use of the appearance of the protected design. As the Advocate General points out at point 84 of his Opinion, it does not, moreover, give rise to the payment of fees when the transportation is undertaken by a third person with the authorisation of the proprietor of the right. Intra-Community transit does not therefore form part of the specific subject-matter of the right of industrial and commercial property in designs.