Case C-43/01 P: Appeal brought on 1 February 2001 by Sandro Cognigni against the order made on 30 November 2000 by the Court of First Instance of the European Communities (First Chamber) in Case T-314/00 Sandro Cognigni vo Commission of the European Communities
Date: 2001-03-24
Institutions: Court of Justice
Subjects: European official, General Court (EU), action for annulment (EU), jurisdiction

24.3.2001

EN

Official Journal of the European Communities

C 95/5

Reference for a preliminary ruling form the Kilpailuneu-
vosto by order of that tribunal of 14 December 2000 in
the case of Arkkitehtuuritoimisto Riitta Korhonen Oy,
Arkkitehtitoimisto Pentti Toivanen Oy and Rakennuttaja-
toimisto Vilho Tervomaa v Varkauden Taitotalo Oy

Must the words ‘put to genuine use’
in Article 12(1) of
Directive 89/104/EEC (1) be interpreted in the manner set out
in paragraph 3.4 above (2) and, if the answer is in the negative,
on the basis of which (other) criterion must the meaning of
‘genuine use’ be determined?

(Case C-18/01)

(2001/C 95/07)

Can there be ‘genuine use’ as referred to above also where no
new goods are traded under the trade mark but other activities
are engaged in as set out in subparagraphs (v) and (vi) of
paragraph 3.1 above (3)?

Reference has been made to the Court of Justice of the
European Communities by an order of the Kilpailuneuvosto
(Competition Council), Finland, of 14 December 2000, which
was received at the Court Registry on 16 January 2001, for a
preliminary ruling in the case of Arkkitehtuuritoimisto Riitta
Korhonen Oy, Arkkitehtitoimisto Pentti Toivanen Oy and
Rakennuttajatoimisto Vilho Tervomaa v Varkauden Taitotalo
Oy on the following question:

Is a share company which a town owns and in which the town
exercises control to be regarded as a contracting authority
within the meaning of Article 1(b) of Council Directive
92/50/EEC relating to the coordination of procedures for the
award of public service contracts (1), if the company acquires
design and project management services for a building project
comprising offices to be leased to undertakings?

As a supplementary question, the Kilpailuneuvosto enquires
whether it affects the decision on the point that the town’s
building project endeavours to create the conditions for
business activity to be carried on in the town.

As a second supplementary question, the Kilpailuneuvosto
enquires whether it affects the decision on the point that the
offices to be built are leased to one undertaking only.

(1) OJ L 209 of 24.7.1992, p. 1.

(1) OJ L 40 of 11.2.1989.

(2) The question whether a particular use can be regarded as ‘genuine
use’ can be answered only (i) by taking into consideration all the
facts and circumstances specific to the case whereby (ii) the
decisive factor is whether all the facts and circumstances specific
to the case, when viewed in connection with one another and in
the context of what is regarded as usual and commercially justified
in the relevant sector of the trade, create the impression that the
use serves to find or preserve a market for goods and services
under that trade mark and not simply to maintain the trade mark,
and whereby (iii) account must generally be taken, as regards
these facts and circumstances, of the kind, extent, frequency,
regularity and duration of the use in conjunction with the kind of
goods or service and the kind and size of the undertaking.

(3) Sale of components and extinguishing compositions for fire-
extinguishing apparatus covered by the trade mark MINIMAX to
undertakings which maintained similar apparatus. Maintaining,
checking,
fire-
extinguishing apparatus marked with the trade mark MINIMAX,
using stickers bearing the words ‘Gebruiksklaar Minimax’ (Read
for use — Minimax).

and overhauling of

regauging,

repairing

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of 26 January 2001 in the case of
Ansul B.V. and Ajax Brandbeveiliging B.V.

(Case C-40/01)

(2001/C 95/08)

Appeal brought on 1 February 2001 by Sandro Cognigni
against the order made on 30 November 2000 by the
Court of First Instance of the European Communities
(First Chamber) in Case T-314/00 Sandro Cognigni vo
Commission of the European Communities

(Case C-43/01 P)

(2001/C 95/09)

Reference has been made to the Court of Justice of the
European Communities by order of 26 January 2001 by
the Hoge Raad der Nederlanden (Supreme Court of
the
Netherlands), which was received at the Court Registry on
31 January 2001, for a preliminary ruling in the case of Ansul
B.V. and Ajax Brandbeveiliging B.V. on the following questions:

An appeal has been brought before the Court of Justice of the
European Communities on 1 February 2001 by Sandro
Cognigni, represented by Walter Massucci, of the Fermo (AP)
Bar, having Chambers in Pedaso, 5 Via Giovanni XXIII, against
the order made on 30 November 2000 by the Court of First
Instance of the European Communities (First Chamber) in Case
T-314/00 Sandro Cognigni v Commission of the EC.

C 95/6

EN

Official Journal of the European Communities

24.3.2001

The appellant claims that the Court should:

— Set aside the order under appeal and refer the case to the

Court having jurisdiction in the matter;

— Order the Commission to pay the costs of the proceedings

before both Community Courts.

or administrative provisions necessary to comply with
Council Directive 95/63/EC of 5th December 1995 (1)
amending Directive 89/655/EEC (2) concerning the mini-
mum safety and health requirements for the use of work
equipment by workers at work and/or failing to inform
the Commission thereof and

— condemn Ireland to bear the costs of the procedure.

Pleas in law and main arguments

(1)

The legal definition of the action at first instance

Pleas in law and main arguments

Having regard to the action at first instance, and bearing
in mind the fact that the formal
issue of the legal
definition thereof cannot be regarded as precluding the
admissibility of an action, it appears permissible to argue
that the grounds set out on that point in the order under
appeal ought to be censured in their entirety.

Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 5 December 1998 without Ireland having enacted
the provisions necessary to comply with the directive referred
to in the conclusions of the Commission.

(2)

The jurisdiction of the Court of First Instance

(1) OJ L 335, 30.12.1995, p. 28.
(2) OJ L 393, 30.12.1989, p. 13.

It
is clear that, since this case involves a dispute
between a Community institution and the member of a
consultative committee established by that institution,
the Court of First Instance has jurisdiction to deal with
the dispute.

It is further evident that, pursuant to Article 91 of
the Staff Regulations applicable to officials and other
servants of the European Communities, the Court of
Justice has jurisdiction in any dispute between the
Community and ‘any person to whom these Staff
Regulations apply’. Since the Court of First Instance
ruled that it lacked jurisdiction in favour of the Court of
Justice, the Court of First Instance ought, of its own
motion,
the application was
forwarded to the Court having jurisdiction in the matter.

to have ensured that

Action brought on 5 February 2001 by the Commission
of the European Communities against Ireland

(Case C-48/01)

(2001/C 95/10)

An action against Ireland was brought before the Court of
Justice of the European Communities on 5 February 2001 by
the Commission of the European Communities, represented
by Ms Nicola Yerrell, Member of its legal Service, acting as
agent, with an address for service at the office of Mr Carlos
Go´ mez de la Cruz, also a member of its Legal Service, Centre
Wagner, Kirchberg, Luxembourg.

The Applicant requests that the Court should:

— find that Ireland has failed to fulfil its obligations under
the EC Treaty by failing to adopt the laws, regulations

Reference for a preliminary ruling by the Tribunale di
Siena, by order of that court of 26 January 2001 in
the case of Milena Castellani v Istituto Nazionale della
Previdenza Sociale (INPS)

(Case C-50/01)

(2001/C 95/11)

Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di Siena
(District Court, Siena) of 26 January 2001, which was received
at the Court Registry on 5 February 2001, for a preliminary
ruling in the case of Milena Castellani v Istituto Nazionale della
Previdenza Sociale (INPS), on the following questions:

Is the rule precluding aggregation of the accounting value of
the special supplementary pay with the payments made to a
worker in the reference period (Article 2(4) of Legislative
Decree No 80/1992) compatible — inter alia in the light of
past ruling of the Court of Justice concerning that decree —
with EEC Directive 987/80 (1), and in particular:

(1) Can that non-aggregability be regarded as conforming
with the purpose of
the directive which appears
(Article 3(1)) to be to ensure the payment of outstanding
claims in respect of wages arising within a specified time
span (Article 3(2)) and in respect of a certain period
(Article 4(1) and (2))? or

(2) Does that non-aggregability reflect a rule concerning
assistance, not conforming with the social criterion on
which Directive 987/80 is based?