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10.12.

2005 EN Official Journal of the European Union C 315/3

Declares that, by reserving, in Article 4 of Law No 85-704 of 12 ment on 20 October 2005, the operative part of which is as
July 1985 on public project contracting and its relationship to private follows:
project management, as amended by Law No 96-987 of
14 November 1996 on the implementation of the urban revival pact,
the task of delegated project contracting to an exhaustive list of legal
persons created under French law, the French Republic has failed to Article 11(2) of Directive 97/13/EC of the European Parliament and
fulfil its obligations under Council Directive 92/50/EEC of 18 June of the Council of 10 April 1997 on a common framework for
1992 relating to the coordination of procedures for the award of general authorisations and individual licences in the field of telecom-
public service contracts, as amended by European Parliament and munications services must be interpreted as precluding national legis-
Council Directive 97/52/EC of 13 October 1997, and under Article lation such as that at issue in the main proceedings which provides
49 EC. that a new operator on the telecommunications market is required to
pay a charge in respect of the allocation of telephone numbers taking
account of their economic value, even though a telecommunications
undertaking having a dominant position on the same market took
(1) OJ C 200 of 23.08.2003. over free of charge the very large stock of numbers which were avail-
able to its predecessor, the former monopoly, and national law
precludes retrospective payment of such a charge in respect of that
stock.

(1) OJ C 251 of 18.10.2003.


JUDGMENT OF THE COURT

(Third Chamber)

JUDGMENT OF THE COURT


of 20 October 2005

(Grand Chamber)
in Joined Cases C-327/03 and C-328/03: References for a
preliminary ruling from the Bundesverwaltungsgericht in
Bundesrepublik Deutschland v ISIS Multimedia Net GmbH of 18 October 2005
und Co. KG, and Others (1)

in Case C-405/03: Reference for a preliminary ruling from


(Telecommunications services — Directive 97/13/EC — the Gerechtshof te 's-Gravenhage in Class International BV
Article 11(2) — Charge for the allocation of new telephone v Colgate-Palmolive Company, Unilever NV, SmithKline
numbers — Stock of numbers available free of charge to the Beecham plc, Beecham Group plc (1)
undertaking succeeding the former monopoly)

(Trade marks — Directive 89/104/EEC — Regulation (EC)


(2005/C 315/05) No 40/94 — Rights conferred by the trade mark — Use of
the mark in the course of trade — Importation of original
goods into the Community — Goods placed under the
external transit procedure or the customs warehousing proce-
(Language of the case: German) dure — Opposition of the trade mark proprietor — Offering
for sale or selling goods placed under the external transit
procedure or the customs warehousing procedure — Opposi-
tion of the trade mark proprietor — Onus of proof)

In Joined Cases C-327/03 and C-328/03: two references for a


preliminary ruling under Article 234 EC from the Bundesver- (2005/C 315/06)
waltungsgericht (Germany), made by decisions of 30 April
2003, received at the Court on 28 July 2003, in the proceed-
ings between Bundesrepublik Deutschland and ISIS Multimedia
(Language of the case: Dutch)
Net GmbH und Co. KG, represented by ISIS Multimedia Net
Verwaltungs GmbH (C-327/03), Firma O2 (Germany) GmbH
und Co. OHG (C-328/03) — the Court (Third Chamber),
composed of A. Rosas, President of the Chamber, J. Male-
novský, S. von Bahr (Rapporteur), A. Borg Barthet and U.
Lõhmus, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. In Case C-405/03: reference for a preliminary ruling under
Ferreira, Principal Administrator, for the Registrar, gave a judg- Article 234 EC from the Gerechtshof te 's-Gravenhage
C 315/4 EN Official Journal of the European Union 10.12.2005

(Netherlands), made by decision of 28 August 2003, received JUDGMENT OF THE COURT


at the Court on 29 September 2003, in the proceedings
pending before that court between Class International BV and
Colgate-Palmolive Company, Unilever NV, SmithKline Beecham (Second Chamber)
plc, Beecham Group plc — the Court (Grand Chamber),
composed of V. Skouris, President, P. Jann, C.W.A. Timmer- of 20 October 2005
mans, A. Rosas and J. Malenovský, Presidents of Chambers,
C. Gulmann (Rapporteur), R. Schintgen, N. Colneric, S. von
Bahr, J.N. Cunha Rodrigues, A. Borg Barthet, M. Ilešič, and in Case C-468/03: reference for a preliminary ruling from
J. Klučka, Judges; F.G. Jacobs, Advocate General; M. Ferreira, the VAT and Duties Tribunal, London Overland Footwear
Principal Administrator, for the Registrar, gave a judgment on Ltd v Commissioners of Customs & Excise (1)
18 October 2005, the operative part of which is as follows:
(Common customs tariff — Import customs duties —
Declared customs value including a buying commission —
Payment of customs duty on full amount declared — Revision
of the customs declaration — Conditions — Refund of
1. Article 5(1) and (3)(c) of First Council Directive 89/104/EEC of customs duties paid on the buying commission)
21 December 1988 to approximate the laws of the Member
States relating to trade marks and Article 9(1) and (2)(c) of (2005/C 315/07)
Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark must be interpreted as meaning that a
trade mark proprietor cannot oppose the mere entry into the Com- (Language of the case: English)
munity, under the external transit procedure or the customs ware-
housing procedure, of original goods bearing that mark which had
not already been put on the market in the Community previously
by that proprietor or with his consent. The trade mark proprietor In Case C-468/03: reference for a preliminary ruling under
cannot make the placing of the goods at issue under the external Article 234 EC from the VAT and Duties Tribunal, London
transit procedure or the customs warehousing procedure conditional (United Kingdom), made by decision of 29 September 2003,
on the existence, at the time of the introduction of those goods received at the Court on 6 November 2003, in the proceedings
into the Community, of a final destination already specified in a between Overland Footwear Ltd and Commissioners of
third country, possibly pursuant to a sale agreement. Customs & Excise — the Court (Second Chamber), composed
of C.W.A. Timmermans and J. Makarczyk, Presidents of Cham-
bers, C. Gulmann (Rapporteur), R. Schintgen and J. Klučka,
Judges; M. Poiares Maduro, Advocate General; K. Sztranc,
Administrator, for the Registrar, gave a judgment on 20
October 2005, the operative part of which is as follows:
2. ‘Offering’ and ‘putting on the market’ the goods, within the
meaning of Article 5(3)(b) of Directive 89/104 and Article
9(2)(b) of Regulation No 40/94, may include, respectively, the 1. Articles 29, 32 and 33 of Council Regulation (EEC) No
offering and sale of original goods bearing a trade mark and 2913/92 of 12 October 1992 establishing the Community
having the customs status of non-Community goods, when the Customs Code must be interpreted as meaning that a buying
offering is done and/or the sale is effected while the goods are commission included in the declared customs value and not distin-
placed under the external transit procedure or the customs ware- guished from the sale price of the goods in the customs declaration
housing procedure. The trade mark proprietor may oppose the is to be regarded as forming part of the transaction value within
offering or the sale of such goods when it necessarily entails the the meaning of Article 29 of the Code and therefore dutiable.
putting of those goods on the market in the Community.
2. On a proper interpretation of Articles 78 and 236 of Regulation
No 2913/92:

— after the release of the imported goods, the customs authorities,


3. In a situation such as the one at issue in the main proceedings, it presented with an application from the declarant seeking revi-
is for the trade mark proprietor to prove the facts which would sion of his customs declaration in relation to those goods, are
give grounds for exercising the right of prohibition provided for in required, subject to the possibility of a subsequent court action,
Article 5(3)(b) and (c) of Directive 89/104 and Article 9(2)(b) either to reject the application by a reasoned decision or to
and (c) of Regulation No 40/94, by proving either release for free carry out the revision applied for;
circulation of the non-Community goods bearing his mark or an
offering or sale of the goods which necessarily entails their being
put on the market in the Community. — where they find, at the conclusion of that revision, that the
declared customs value erroneously included a buying commis-
sion, they are required to regularise the situation by reimbur-
sing the import duties applied to that commission.
(1) OJ C 304 of 13.12.2003.

(1) OJ C 7, 10.01.2004.