C-383/98

1 — In a mythical modern American novel, the character Bateman, on returning to his apartment, finds in his mail Facts a Polo Ralph Lauren catalogue (p. 71) and later buys two pairs of Ralph Lauren pyjamas (p. 291); at another point, sat in Harry's in New York, he notices that Todd Hamlin is wearing a belt from Ralph Lauren (p. 87); Craig McDer- mott lunches at the Yale Club wearing a lambswool and 3. As follows from the order for reference, cashmere blazer and worsted wool flannel trousers by Ralph the appellant in the main proceedings, a Lauren (p. 156); the screams of the unfortunate Bethany are drowned out with a camel-hair overcoat from Ralph Lauren (p. 245); and, finally, Bateman and Evelyn choose huge Polo Ralph Lauren towels for drying themselves after late-night skinny-dipping in the Hamptons (p. 280) (Ellis, B.E., * Original language: Spanish. American Psycho, Picador, 2000).

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POLO/LAUREN

8. The first subparagraph of Article 6(1) of the Regulation provides that where a customs office to which the decision grant- 6. Under Article 3, the holder of a produc- ing an application by the holder of a right tion or trade mark, copyright or neighbour- has been forwarded is satisfied, after con- sulting the applicant where necessary, that specified goods correspond to the descrip- 2 — OJ 1994 L 341, p. 8. tion of the counterfeit or pirated goods

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OPINION OF MR RUIZ-JARABO — CASE C-383/98

contained in that decision, it must suspend formalities for export have been carried release of the goods or detain them. out.'

9. Article 84(1) of Council Regulation (EEC) N o 2913/92 of 12 October 1992 establishing the Community Customs Code (hereinafter 'the Customs Code') 3 states The question referred for a preliminary that, where the term '[suspensive] proce- ruling dure' is used, it is understood as applying, in the context of non-Community goods, inter alia, to external transit.

11. On 29 September 1998, the Oberster Gerichtshof decided to stay proceedings and to apply to the Court, under Arti- cle 177 of the EC Treaty (now Article 234 10. According to Article 91(1) of the Cus- EC), for a preliminary ruling on the fol- toms Code: 'The external transit procedure lowing question: shall allow the movement from one point to another within the customs territory of the Community of:

12. Among the participants in these pro- ceedings, only the German Government has questioned the applicability of the Regula- tion to goods in external transit which might infringe a mark owned by a non- Community company. 14. The Finnish Government and the Com- mission also point out that the Regulation contributes, at Community level, to the implementation of the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agree- ment) of the World Trade Organisation. According to that Government, the Regu- According to the Finnish Government, lation — which seeks to protect the inter- there is a distinct risk that, if the narrow nal market — does not authorise the interpretation suggested by the national national customs authorities to intervene court were accepted, counterfeit goods in where the goods are merely in transit. This transit through Community territory would interpretation, it claims, is confirmed by end up on the internal market. the adoption, on 25 January 1999, of a new anti-piracy regulation 4 which, inter alia, extends the obligation to intervene to goods placed in a free zone or free ware- house.

Consideration of the question referred for a preliminary ruling

Article 84(1) of the Customs Code, '[sus- 17. Thus, from a literal interpretation of pensive] procedure' is a technical term used the Regulation it follows, without any as a generic designation for the customs room for reasonable doubt, that its provi- procedures of 'customs warehousing', sions are to be applied when goods sus- 'inward processing in the form of a system pected of infringing a trade mark whose of suspension', 'processing under customs holder is a company with its registered control', 'temporary importation' and office outside Community territory are in 'external transit'. The same Code defines Community external transit from one non- the 'external transit' procedure in terms of member country to another. what it means in practice. Thus, external transit is that which allows the movement from one point to another within the customs territory of the Community of non-Community goods, without such goods being subject to import duties and other charges or to commercial policy measures [Article 91(l)(a) of the Customs 18. Far from being weakened, this literal Code]. The Regulation is therefore interpretation is corroborated by the adop- expressly designed to apply to goods pas- tion of Regulation No 241/1999, 5 which, sing through Community territory on the for our present purposes, may be viewed as way from one non-member country to an extension of Regulations (EC) another. No 3842/86 6 and No 3295/94, in so far as it enables national authorities to inter- vene in a wider range of customs proce- dures.

between the Member States in a manner 21. Secondly, I do not believe that it is which may be detrimental to the attain- possible to assert categorically that the ment of the objectives of a single inter-State external transit of non-Community goods market'. In this connection, the national is an activity completely devoid of effect on court cites the example of Community the internal market. Like other suspensive competition law. customs procedures, external transit is based on a sort of legal fiction. Goods placed under this procedure arc subject- neither to the corresponding import duties nor to other measures of commercial pol- icy; it is as if they had not entered Community territory. There is no need to extend this fiction any further than neces- Finally, if the text of the Regulation were to sary. In reality, the goods arc imported exclude this latter interpretation, it would from a non-member country and pass still be possible to argue that, inasmuch as through one or more Member States before it appears to wish to regulate situations being exported to another non-member with an extra-territorial aspect, the Court country. Thus, in actual fact, like importa- should assess its compatibility with the tion, the placing of goods under an external higher-ranking provisions of the Commu- transit procedure constitutes a Community nity legal system and, if necessary, declare it activity. This conclusion is further rein- void under subparagraph (b) of Arti- forced by the risk — noted by several of the cle 177, first paragraph, of the EC Treaty. parties — of counterfeit goods placed under a transit procedure evading controls and ending up on the European market.

23. The principles applicable to the Com- 25. The Court also rejected an interpreta- munity competition regime cannot be tion of Article 113, the effect of which extrapolated to the present case, as sug- would have been 'to restrict the common gested by the national court. Regulation commercial policy to the use of instruments No 3295/94 was adopted on the basis of intended to have an effect only on the Article 113 of the EC Treaty (now, after traditional aspects of external trade' and, amendment, Article 133 EC) which indi- on the contrary, considered that 'the ques- cates, by way of example, the instruments tion of external trade must be governed which the common commercial policy may from a wide point of view', as confirmed by employ. According to paragraph 1 of this 'the fact that the enumeration in Arti- article, 'The common commercial policy cle 113 of the subjects covered by commer- shall be based on uniform principles, parti- cial policy is conceived as a non-exhaustive cularly in regard to changes in tariff rates, enumeration'. 10 the conclusion of tariff and trade agree- ments, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies'. 26. On the basis of this wide view, it can be stated that, subject to the exceptions for which the Treaty provides, 11 Article 113 requires the establishment of uniform prin- ciples applicable to any measure, whether taken unilaterally or by agreement, inten- ded to control trade with non-member 24. At a very early stage, the Court decided countries, whatever its content or objec- that the proper functioning of the customs tives. 12 Among the latter, the Community union — a sine qua non of a Community should endeavour to maintain a reasonable commercial policy — justified a wide inter- balance between the interests of world pretation of Article 113 of the Treaty, in trade upheld by Article 110 of the EC particular, and of the powers which various Treaty (now Article 131 EC) and the goals provisions confer on the institutions to of other Community policies. 13 allow them to control external trade by measures taken both independently and by agreement. 8Moreover, again according to the Community judicature, the implemen- tation of this common commercial policy also requires that the concept not be 27. Certain provisions on intellectual prop- interpreted restrictively, in order to avoid erty affecting cross-border trade constitute causing disturbances in intra-Community an essential element of international trade trade by reason of the disparities which would then exist in certain sectors of economic relations with non-member coun- 10 — Loc. cit. tries. 9 11 — For example, in connection with the free movement of persons, agriculture, transport and services. 12 — See Ehlermann, C D . . 'The scope of Article 113 of the EEC Treaty', Études de droit des Communautés européennes, Mélanges offerts à Pierre-Henri Teitgen, Paris, 1984, 8 — Judgment in Case 8/73 Massey-Ferguson [1973] ECR 897, p . 145, in particular, p . 152. paragraph 4. 13 — With regard to the common agricultural policy, see the 9 - Opinion 1/78 of 4 October 1979 [1979] ECR 2 8 7 1 , judgment in Case 112/80 Dürbek [1981] ECR 1095, paragraph 4 5 . paragraph 4 3 .

The Court has acknowledged that, inas- 30. In short, there can be no doubt that the much as that regulation concerns the pro- Community is empowered, under Arti- hibition of the release for free circulation of cle 113 of the Treaty, to introduce common counterfeit goods, it was rightly based on rules for monitoring counterfeit goods Article 113 of the Treaty. '[I]t relates to under a suspensive customs procedure such measures to be taken by the customs as the external transit procedure. In other authorities at the external frontiers of the Community. Since measures of that type can be adopted autonomously by the 1 7 — I t is significant that, as distinct írom the previous regulation — Regulation No 3842/86 — which was based Community institutions on the basis of lointly on Articles 113 and 235 of the HC Treaty (now Article 308 F.CI, Regulation No 1295/94 is based exclu- Article 113 of the EC Treaty, it is for the sively on Article 1 13. Community alone to conclude interna- 18 — Case 275/87 | 1 9 8 9 | F.CR 259 (summary). tional agreements on such matters'. 16 19 —Council Regulation of 1 3 July 1987 on the temporary importation of containers (ÒJ 1987 1. 196, p. 4). 20 — In actual fact, the iiidgnient refers without distinction to Articles 28 (now, after amendment, Article 26 EC) and 113 of the FC Treaty, adding that the delimitation of the 14 — Opinion of 15 November 1994 [1994| F.CU 1-5267. respective fields of application of these provisions cannot 15 — Regulation N o 3842/86, previously cited in footnote 6 affect the validity of the act, inasmuch as the respective procedures for establishing the intention of the Council are 16 — Opinion 1/94, paragraph 55. identical (paragraph 4).

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