Fakes in transit: the Belgian question

On Tuesday," in "Breaking News -- Nokia Customs Seizure Case for ECJ" (here), the IPKat breathlessly reported on the decision of the Court of Appeal for England and Wales to refer some questions -- as yet probably unformulated and certainly unavailable to the public -- to the Court of Justice of the European Communities on a preliminary ruling concerning the interpretation of EU customs seizure rules which appear not to permit the seizure of counterfeits in transit across the European Union if they've not been put on to the market there. This item mentioned a similar reference for a preliminary ruling from Belgium.

Many readers have since emailed the IPKat for further details of the Belgian reference which, he is pleased to say, he now has. The details are as follows: the decision is NV Koninklijke Philips Electronics v Far East Sourcing Limited AR No 02/7600/A, 4 November 2009, brought before the Court of First Instance, Antwerp District. The question asked in this reference actually relates to the Regulation 3295/94, the predecessor of Regulation 1383/2003:

Is Article 6.2(b) of Council Regulation 3295/94 of 22 December 1994 (the old Customs Regulation) a rule of standardised Community law that must be observed by the Court of the Member State that has been applied to by the holder of that right in accordance with Article 7 of the Regulation, and does that rule mean that the court, in making its assessment, may not take into account the temporary storage status /the transit status and must apply the legal fiction that the goods were manufactured in that same Member State, and must subsequently decide, while applying the law of that same Member State, whether such goods infringe the intellectual right in question?

Says the IPKat, given the nature of the questions and the closeness of time, it would be silly for the ECJ not to join the two cases, wouldn't it? Merpel says, silliness has nothing to do with it: have you forgotten how the same court managed not to join all the Fixtures Marketing database right cases only a few short years ago?