Adidas AG.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Wathelet
• ECLI: ECLI:EU:C:1999:300
• Date: 10 June 1999
• Docket Number: C-223/98
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61998C0223

Opinion of Mr Advocate General Cosmas delivered on 10 June 1999. - Adidas AG. - Reference for a preliminary ruling: Kammarrätten i Stockholm - Sweden. - Free movement of goods - Regulation (EC) No 3295/94 - Prohibition of release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods - Provision of national law requiring the names of consignees of consignments detained by the customs authorities pursuant to the regulation to be kept confidential - Compatibility of the provision with Regulation (EC) No 3295/94. - Case C-223/98.

European Court reports 1999 Page I-07081

Opinion of the Advocate-General

I - Introduction

1 In the present case the Court is asked to give a ruling on a question referred to it under Article 177 of the Treaty by the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm). The question concerns the interpretation of certain provisions of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods. (1)

II - Facts and procedure

2 Adidas AG (hereinafter `Adidas') is the holder in Sweden of the right in a trade mark for various sports articles and sports wear. On 16 February 1998, after carrying out a check, the Arlanda Tullmyndighet (Customs Office) (Stockholm) decided to suspend the release for free circulation of certain goods, because it believed that they were counterfeit goods, and at the same time informed Adidas, as the trade-mark holder. A representative of Adidas inspected the goods and established that they were counterfeit.

3 Subsequently, Adidas lodged an application with the competent national service (pursuant to Regulation No 3295/94) for action by the Customs Office under Article 3 of the regulation in order to prevent the release for free circulation of the goods. The Generaltullstyrelsen (Customs and Excise Authority) granted that application on 17 February 1998. Under Regulation No 3295/94 the disputed goods could thus be detained until 17 March 1998, after which date it was considered that the national customs authorities could not lawfully detain the goods, since Adidas, which had not availed itself of the possibility offered by Article 6 of Regulation No 3295/94, had not brought an action before a court.

4 Since Adidas did not know the identity of the declarant or the consignee of the goods, which were required in order for the undertaking to be able to bring an action against them, it requested information regarding their identity from the customs authorities, pursuant to Article 6 of Regulation No 3295/94. The request was rejected because it was considered to be contrary to the provisions of the national legislation on protection of confidential information. Under that legislation, it appears that the information in question may not be disclosed.

5 Adidas then appealed to the Kammarrätten i Stockholm against the decision of the Arlanda Customs Office to refuse to disclose the identity of the consignee of the goods. Adidas claimed that that refusal meant that in practice Regulation No 3295/94 was not applicable and was therefore contrary to Community law, even though it was based on a provision of national law.

III - The question referred by the national court

6 In order to determine the extent to which the contested national provisions on the protection of confidential information are compatible with Community law, the Kammarrätten i Stockholm considered that it was necessary to refer a question on the interpretation of Regulation No 3295/94 to the Court of Justice of the European Communities. The national court refers in particular to part of the regulation under which the national customs authorities are required to inform the trade-mark holder of the identity of the declarant and/or consignee of goods which have been found to be counterfeit. The question referred by the national court reads as follows:

`Does Council Regulation (EC) No 3295/94 constitute a bar to application of rules of national law under which the identity of declarants or consignees of imported goods, which the trade-mark owner has found to be counterfeit, may not be disclosed to the trade-mark owner?'

IV - Relevant Community legislation

7 Under Article 1(1)(a) of Regulation No 3295/94, that regulation is intended to lay down the conditions under which the customs authorities must take action

`where goods suspected of being counterfeit or pirated are:

- entered for free circulation, export or re-export,

- found when checks are made on goods placed under a suspensive procedure within the meaning of Article 84(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, or re-exported subject to notification'.

8 The effectiveness of the system for combating trade in counterfeit goods which has been introduced by the Community regulation depends to a large extent on the interest shown by the trade-mark holder in defending his legitimate interests. The trade-mark holder is invited to apply for the adoption of measures in respect of goods which infringe his right. Under Article 3(1) of Regulation No 3295/94, `[i]n each Member State, the holder of a right may lodge an application in writing with the competent service of the customs authority for action by the customs authorities where the goods are placed in one of the situations referred to in Article 1(1)(a)'.

9 Article 4 of Regulation No 3295/94 contains the following provisions, which are intended to make easier the task of the trade-mark holder: `[w]here, in the course of checks made under one of the customs procedures referred to in Article 1(1)(a) and before an application by the holder of the right has been lodged or approved, it appears evident to the customs office that goods are counterfeit or pirated, the customs authority may, in accordance with the rules in force in the Member States concerned, notify the holder of the right, where known, of a possible infringement thereof. The customs authority shall be authorised to suspend release of the goods or detain them for a period of three working days to enable the holder of the right to lodge an application for action in accordance with Article 3.'

10 Article 5 of Regulation No 3295/94 then provides: `[t]he decision granting the application by the holder of the right shall be forwarded immediately to the customs offices of the Member State which are liable to be concerned with the goods alleged in the application to be counterfeit or pirated.' The decision granting the application by the holder of the right concludes the first stage of the procedure. The remainder of the procedure is governed by the provisions of Chapter IV of the regulation at issue, which is entitled `Conditions governing action by the customs authorities and by the authority competent to take a substantive decision'.

11 Article 6(1) of Regulation No 3295/94 provides:

`[w]here a customs office to which the decision granting an application by the holder of a right has been forwarded pursuant to Article 5 is satisfied, after consulting the applicant where necessary, that goods placed in one of the situations referred to in Article 1(1)(a) correspond to the description of the counterfeit or pirated goods contained in that decision, it shall suspend release of the goods or detain them.

The customs office shall immediately inform the service which dealt with the application in accordance with Article 3. That service or the customs office, shall forthwith inform the declarant and the person who applied for action to be taken. In accordance with national provisions on the protection of personal data, commercial and industrial secrecy and professional and administrative confidentiality, the customs office or the service which dealt with the application shall notify the holder of the right, at his request, of the name and address of the declarant and, if known, of those of the consignee so as to enable the holder of the right to ask the competent authorities to take a substantive decision. (2) The customs office shall afford the applicant and the persons involved in any of the operations referred to in Article 1(1)(a) the opportunity to inspect the goods whose release has been suspended or which have been detained ...'.

12 Article 7(1) of Regulation No 3295/94 provides: `[i]f, within 10 working days of notification of suspension of release or of detention, the customs office referred to in Article 6(1) has not been informed that the matter has been referred to the authority competent to take a substantive decision on the case in accordance with Article 6(2) or that the duly empowered authority has adopted interim measures, the goods shall be released, provided that all the customs formalities have been complied with and the detention order has been revoked. This period may be extended by a maximum of 10 working days in appropriate cases.'

V - Relevant national legislation

13 Paragraph 2 of Chapter 9 of the Sekretesslagen (Swedish Law on Protection of Confidential Information) (3) provides that the principle of protection of confidentiality applies to information obtained in the course of customs control which is not covered by the exception laid down in the third to sixth sentences of the first subparagraph of Paragraph 1 of Chapter 9 of that Law. Under the latter provision, information obtained by the Customs Office may be disclosed if it is shown that this will not result in any damage to the individual concerned.

VI - My answer to the question referred by the national court

14 A. Council Regulation No 3295/94 seeks to deal with a phenomenon which is a particular threat to unhampered free trade. As is stated in the second recital in the preamble to...