C-115/02

OPINION OF MR MISCHO — CASE C-115/02

OPINION OF ADVOCATE GENERAL MISCHO delivered on 20 March 2003 1

1. In its judgment in Case C-23/99, 2the I — Legal framework Court found that, by implementing, pur- suant to the Code de la Propriété Intellec- tuelle, procedures for the detention by the customs authorities of goods lawfully manufactured in a Member State of the European Community which are intended, following their transit through French ter- ritory, to be placed on the market in A — Community law another Member State where they may be lawfully marketed, the French Republic had failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC). 3. In addition to Article 28 EC, an inter- pretation of which is expressly sought by the referring court, reference is also made to Article 10(4) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part 3(hereinafter 'the Agreement'), which states:

2. In the present case, the Cour de Cas- 'Quantitative restrictions on imports into sation (Court of Cassation) (France) asks, Poland of products originating in the essentially, whether that decision may be Community and measures having equival- transposed to a situation in which goods ent effect shall be abolished on entry into lawfully manufactured in a Member State force of this Agreement with the exception are destined for a non-member country, in of those listed in Annex V which shall be this instance Poland. abolished in accordance with the timetable provided in that Annex.'

B — National law — that the person requesting the deten- tion has instituted civil or criminal proceedings and provided the security 5. Article L.716-8 of the Code de la Propri- required to cover any liability where été Intellectuelle, introduced by Article 11 the infringement is not upheld in final of Law 94-102 of 5 February 1994, 4 proceedings.... provides:

The measure by which the goods arc detained shall be discharged.'

'The customs authority may, as part of its controls, upon a written request from the owner of a registered trade mark or the holder of an exclusive export right, detain goods which the latter alleges are supplied II — Main proceedings and question under a trade mark which infringes his referred registered trade mark or in respect of which he holds an exclusive right of use.

6. Rioglass SA (hereinafter 'Rioglass'), a 4 — Journal Officiel de la République Française of 8 February company established under Spanish law, 1994, p. 2151. manufactures and markets windows and

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11. The Cour de Cassation decided there- fore to stay proceedings and to refer the following question to the Court for a preliminary ruling: 8. On 25 November 1997, the French customs authorities carried out a check near Bordeaux on a lorry belonging to Transremar, pursuant to which the customs officers drew up a written report of deten- t i o n of t h e g o o d s , f o l l o w e d , o n 'Is Article 30 of the Treaty, now Article 28 27 November 1997, by a written report EC, to be interpreted as meaning that it of seizure on the ground of suspected precludes the implementation, pursuant to infringement of the trade mark. the Code de la propriété intellectuelle, of

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procedures for detention by the customs 15. The French Government cites in this authorities of goods lawfully manufactured connection the case-law of the Court, 5 in a Member State of the European Com- according to which the fact of a Treaty munity which are intended, following their provision and a provision of an association transit through French territory, to be agreement being identical does not imply placed on the market in a non-member that the two provisions must be given the country, in the present case Poland?' same interpretation. Such an agreement does not serve the same purpose as the Treaty, a point which must be taken into account when interpreting the texts con- cerned.

I I I— Assessment

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18. Lastly, all the interveners refer to on the market in a non-member country, Regulation (EC) No 3295/94. 7 In the which would rule out the application of French Government's view, that regulation Article 28 EC, since that provision is provides justification for the customs meas- applicable only to national measures liable ures that gave rise to the main proceedings, to constitute a barrier to intra-Community whereas both the Portuguese Government trade. and the Commission dispute its relevance.

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24. As the Commission points out, the Articles 30 and 36 of the EC Treaty. These internal market is affected in two ways. cases differ from those cited by the French On the one hand, the transit of goods Government, in which, unlike in the pres- originating in a Member State, including ent instance, the problem of transit through the transport activity, itself constitutes an a Member State did not arise. Only in such economic activity covered by the funda- cases has the Court analysed the situation mental freedoms established by the Treaty. in the light of the agreements in force with On the other hand, any other view could the State of destination of the goods con- result in the export of goods manufactured cerned. in a Member State and destined for a non-member country being deemed either lawful or unlawful under Community law depending on the route taken by the goods within the Community, a state of affairs which could lead to re-routing of traffic and thus constitutes a manifest distortion of freedom of movement and of competi- tive conditions within the single market. 27. According to the case-law 11 concern- ing problems of transit through a Member State to a non-member country, 'it is necessary, as a consequence of the Customs Union and in the mutual interest of the Member States, to acknowledge the exist- ence of a general principle of freedom of transit of goods within the Community. 25. This dual impact is present whatever That principle is, moreover, confirmed by the destination of the goods transiting a the reference to "transit" in Article 36 of Member State. It follows that Articles 28 the Treaty'. EC to 30 EC are applicable in a situation such as that which gave rise to the main proceedings, regardless of whether the goods detained are intended for a non- member country.

29. It could, however, be further observed 98/71/EC of the European Parliament and that, according to the Court's consistent of the Council of 13 October 1998 on the case-law, 12 Treaty provisions are not appli- legal protection of designs 14 was not cable where there exists Community har- applicable at the material time. In any monisation in the area concerned. And, in event, that Directive provides only for the area of trade mark law, there do indeed partial harmonisation of the protection of exist Community rules on harmonisation designs, particularly in respect of spare and unification. 13 parts for motor cars such as those in question, concerning which it refers to national law, as can be seen from Article 14, which provides: '... Until such time as amendments to this Directive are adopted on a proposal from the Commis- sion in accordance with the provisions of Article 18, Member States shall maintain in 30. It should however be observed that the force their existing legal provisions relating national court framed its question with to the use of the design of a component part reference to intellectual property rights in used for the purpose of the repair of a general rather than to trade mark law complex product so as to restore its original alone. It follows that the existence of the appearance and shall introduce changes to Community rules concerning trade marks those provisions only if the purpose is to cannot be a decisive factor in formulating liberalise the market for such parts'. an answer to the question referred. Fur- thermore, the facts of the matter itself are not limited to the issue of trade marks since, as the Commission points out, the French customs authorities also referred, in t h e i r w r i t t e n r e p o r t s of 25 and 27 November 1997, to suspected counter- 32. It is apparent from the foregoing con- feiting of designs. siderations that the situation in the present case is not one in which the existence of harmonisation is such as to render the Treaty rules inapplicable.

34. A point to be made at the outset is that (see, inter alia, Case C-10/89 Hag [1990] the terms of the analysis are the same as ECR I-3711, paragraph 12; and Case those of the analysis undertaken by the C-61/97 FDV [1998] ECR I-5171, para- Court in its judgment in Commission v graph 13)'. France, cited above. The present case involves the same procedures for detention under customs control and the question also arose, in the aforementioned judg- ment, of the possible justification of those procedures by the protection of industrial and commercial property, under Article 30 37. The Court went on to analyse the EC. content of the specific subject-matter of the right of industrial and commercial property concerned, namely a right in designs, in order to ascertain whether the ability to prevent third parties having the goods concerned transit the territory within which that right applies, without the con- 35. Admittedly, in the main proceedings, sent of the holder thereof, formed part of suspected infringement of trade marks is the specific subject-matter of that right. also, indeed above all, at issue, whereas, in the earlier judgment, the question was one of alleged counterfeiting of designs. As we shall see, this is of no consequence for the line of argument.

ject-matter of the right of industrial and 44. The specific subject-matter thus commercial property. implies, as for the right in designs at issue in Commission v France, cited above, exclusive use in the context of a product placed on the market for the first time. By its very nature, however, transit cannot 40. The Court concluded that the impedi- constitute such use, nor therefore can it ment to the free movement of goods caused affect the specific subject-matter of the by the product's detention under customs right, since it is limited, as the Court control in the Member State where transit observed in Commission v France, 16cited takes place is not justified by the need to above, to the physical circulation of the protect industrial and commercial prop- goods in question and does not involve the erty. marketing thereof.

41. This line of argument may be trans- posed, mutatis mutandis, to the present case. 45. This conclusion holds good whatever the final destination of the goods in transit. Whether that destination is located in another Member State or in a non-member country is immaterial to the fact that, by its 42. Thus, restriction of the free movement very definition, transit does not constitute of goods would be capable of justification placing on the market and does not there- only on grounds of the protection of the fore affect the specific subject-matter of the specific subject-matter of the right of right of the holder of the trade mark, industrial and commercial property at issue namely, let it be remembered, to place on in the present case, namely the right in a the market for the first time a product trade mark. bearing that trade mark.

47. It should be noted, lastly, that it is not 49. The Commission is however right in contended that the measures of detention drawing attention to the Court's previous are necessary in order to ascertain the decision that this provision relates only to origin or destination of the products con- goods originating in non-member coun- cerned. In any event, the Court has already, tries. 17 It is not disputed, in this regard, in paragraph 48 of the judgment in Com- that the products at issue in the main mission v France, cited above, held that the proceedings were Community goods, law- measures of detention at issue cannot be fully manufactured in a Member State. justified on those grounds since it should normally be possible for such an investi- gation to be carried out on the spot. The Court added that detention for up to 10 days was, on any view, disproportionate in relation to the purpose of such an investi- gation.

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without any change in their customs affairs required under that provision to status...'. justify a measure of detention, takes the opposite view, citing in this connection the Cour d'Appel de Bordeaux, which found that the said Article 4 had not been complied with. 51. The Community nature of the goods in question is, in itself, sufficient to rule out application of Regulation No 3295/94 in the present case. There is thus no need to analyse the arguments developed by the 52. It follows from the foregoing consider- French Government in support of the view ations that measures of detention under that the conditions laid down in Article 4 of customs control such as those at issue in the the Regulation, concerning the existence of main proceedings constitute restrictions on an application by the holder of the right for the free movement of goods incompatible action to be taken by the customs auth- with Article 28 EC and they are not orities, had been met, while the Commis- justified by the need to ensure the sion, which denies, further, the presence, in protection of industrial and commercial the present case, of the 'evident' state of property as provided for in Article 30 EC.

IV — Conclusion

53. In the light of the foregoing, I propose that the question referred by the Cour de Cassation for a preliminary ruling be answered as follows:

Article 28 EC should be interpreted as precluding the implementation of procedures, such as those at issue in the main proceedings, for the detention by the customs authorities of goods lawfully manufactured in a Member State of the European Community which are intended, following their transit through French territory, to be placed on the market in a non-member country, in the present case Poland.