Luxembourg, 10/04/2001 (Agence Europe) - The Court of Justice, which will be on judicial recess for the next three weeks, handed down rulings on the free movement of goods, excise duties on contraband spirits, investigations in civil aviation in Greece and standards for water heaters applicable in Italy. At the same time, a press release from the spokesman on parallel imports of jeans in a Levi-Strauss case has plunged the European Commission into turmoil.
The Court of First Instance, which is also taking two weeks' holiday, looked into the term Easybank that an Austrian bank wants to register as a European brand. It also ruled on a petition from some unhappy European cigarette lighter manufacturers and a petition from the association of German steel makers who claim they did not break competition rules.
Luxury food store, product labelling and advertising
The third chamber of the Court did not answer two of the three questions put to it by the Belgian Court of First Instance of Brussels, which will be ruling in the case of Mrs. Christina Bellamy manager of the English Shop Wholesale in Brussels. Christina Bellamy ,said the Court, imports from the UK food that is then retails in Belgium to a clientele of EU officials. She was prosecuted for infringing Belgian law on the sale and advertising of food products.
The Court recalled to the Belgian judge that Belgium cannot prevent a shopkeeper from selling bread that does not conform to Belgian standards, since the bread in question was made and marketed in another member state, in keeping with the famous ruling in the Cassis de Dijon case. Mrs. Bellamy was prosecuted for selling English bread whose salt content was above the maximum 2% allowed under Belgian law.
However, the EU judges found against the English Shop for infringing a EU Directive in that she boasted of the qualities of her milk, saying that it contained no preservatives or food colouring, while all similar foods do not contain such substances either. The Court stated that it did not understand the thrust of the third infringement accusation levelled against Mrs. Bellamy in her advertisement for her breakfast milk, and, the Court said, no one appeared able to explain it.
Excise duties on illegally manufactured alcoholic beverages
Mr. G. van de Water will have to pay excise duties on 2,000 litres of 96.2% pure alcohol, from which he made genever, and stored it in a rented hangar in Barendrecht, the Netherlands. The Dutch State Council (Hoge Raad) asked the EU Court of Justice if the mere storing of alcohol was tantamount to availability for consumption and therefore liable for excise duties. Mr. van de Water sought to benefit from the suspensory effect provided for in the EU Directive on excise duties, which allows alcohol manufacturers to refrain from paying excise duties until their products leave the warehouse.
The 6th chamber of the Court recalled that this possibility only applies in the case of a warehouse certified by the tax authorities, which is not the case of Mr. van de Water's hangar, whose first name was mentioned nowhere in the court documents.
Greece Sentenced
Greece is late in transposing the EU Directive on procedures in the case of accidents and mishaps in civil aviation. The 1994 Directive provides for a special investigation procedure, for setting indices and for expert analysis of debris. The Greek government said that a new presidential decree was being prepared in order to fully comply with the spirit and the aim of the Directive. In addition, a draft has been tabled for the repealing of certain articles of the 1998 law that until now had set the rules for plane accident investigations. Greece's excuses were not enough to avoid the Court finding against Greece.
and from Italy
Italy was guilty for requiring a stricter standard for water heaters than the EU standard, which constitutes a barrier to EU trade. The Italian standard, which can no longer be applied, states that the water heater must be equipped with a mechanism that turns off its electricity supply if the temperature of the water reaches 100 degrees, while the EU standard (EN 60335-2-21) sets the limit at 130 degrees. Italy does not contest that it broke the law and stated to the second chamber that it would remedy the infringement.
Turmoil at the European Commission over a Court press release
The Court's spokesman published a press release to announce that the advocate general, Stix-Hackl, had issued his opinion in a Levi-Strauss case concerning parallel imports of jeans bought outside the EU and the EEA (European economic area). These conclusions, called by some finely detailed and a muddle by others, were hailed by proponents of free trade as a victory for parallel importers who could import into the EU with the presumed authorization of the manufacturers, and by the proponents of manufacturers, who see it as strengthening the rights of brand name owners.
The early publicity in this case has thrown the European Commission into turmoil given the low visibility of the message that the spokesman wanted to hammer home. In addition to the general confusion, some people like to think that the advocate-general's opinion is a sneak preview of the Court's ruling, while others consider his opinion as a testing of the waters. However, statistically speaking, in 50% of cases on subjects that have never been dealt with in the past, the Court does not follow the advocate-general's opinion.
The term "Easybank" may lack imagination
The Trade Mark Office in Alicante will have to reconsider its refusal to register the term Easybank as an EU brand, at the request of the Austrian Bank für Arbeit und Wirtschaft, which uses it for its online banking services. The second chamber of the Court of First Instance overruled the decision of the Office, stating that the term Easybank was only descriptive and not sufficiently distinctive to be registered as an EU brand.
The Court claims that the association between the tern Easybank and the services offered by an online bank, appears too vague and unspecified to describe electronic banking services. A European brand is not supposed to be too descriptive but has to be distinctive. Moreover, just because the term Easybank is lacking in imagination or is not highly unusual or striking should not mean that it cannot be distinctive.
The Bank für Arbeit und Wirtschaft considers that Easybank is not descriptive in an ordinary way, because it evokes associations of ideas that are pleasant and that differ from one person to another, and that the term is distinctive because it constitutes an original combination of two words that is not found in any usual dictionary.
Bic, Flamagas and Swedish Match have lost their case against the Council
The second chamber of the Court of First Instance has thrown out the appeal from cigarette lighter makers Bic (France), Flamagas (Spain) and Swedish Match (Switzerland) to annul the regulation of the Council of January 24, 2000, repealing initial anti-dumping duties imposed on imports of lighters from Japan. The Council fell short of its duty to substantiate its decision. The case was so peculiar that it could not be otherwise, the Court explained.
The peculiar aspect of this case arises from the fact that the European Commission backed the petition of the lighter makers to extend the anti-dumping duties, but because there was not a simple majority in the Council in favour of keeping them, the Commission had to backtrack and propose their repeal..
German steelmakers' association wins against the Commission
The third chamber of the Court has quashed a decision by the European Commission of November 26, 1997, in which it found against an agreement for information exchange between the German professional association of steel makers (Wirtschaftsvereinigung Stahl) and 16 of its members. The steelmakers exchanged questionnaires on some of their flat products, beams and stainless steel wire rod.
This was an opportunity for the Court to recall that information exchange agreements are not in general prohibited automatically, but only if they contain certain characteristics concerning the sensitive and precise nature of information exchanged in periods that are in close succession. But, the Court said, the Commission failed to take into account the fact that the agreement between the steelmakers concerned the exchange of two questionnaires, to the exclusion of a third which provided data that unveiled the strategy of various producers. This mistake by the Commission totally skewed its analysis and its decision against the steelmakers for anti-competitive behaviour was quashed.