Case C-83/01 P: Appeal brought on 19 February 2001 by Chronopost SA against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste
Date: 2001-05-19
Institutions: Court of Justice
Subjects: France, General Court (EU), action for annulment (EU), postal service, subsidiary, transport company

19.5.2001

EN

Official Journal of the European Communities

C 150/9

1.

2.

In determining whether a three-dimensional trade mark
which depicts the shape of a product has distinctive
character within the meaning of Article 3(1)(b) of the
above directive is there a stricter test for distinctive
character than in the case of other forms of trade marks?

any

significance

In the case of three-dimensional trade marks which depict
the shape of the product, does Article 3(1)(c) of the
Directive have
independently of
Article 3(1)(e)? If so, when considering Article 3(1)(c) —
or alternatively Article 3(1)(e) — must regard be had to
the interest of the trade in having the shape of the product
available for use, so that registration is, at
in
principle, ruled out and is possible as a rule only in the
case of trade marks which meet the requirements of
Article 3(3), first sentence, of the directive?

least

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling by the Dioikitiko
Efeteio (Three-member Chamber C) Athens by order of
that court of 26 October 2000 in the case of Makedoniko
Metro v Greek State

(Case C-57/01)

(2001/C 150/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio
(Administrative Court of Appeal), Athens, of 26 October 2000
which was received at the Court Registry on 9 February 2001,
for a preliminary ruling in the case of Makedoniko Metro v
Greek State on the following questions:

‘Must a change in the composition of an association participat-
ing in procedures for the award of a public-works contract,
which occurs after submission of tenders and selection of the
association as the provisional contractor and is tacitly accepted
by the awarding authority, be interpreted in such a way as to
result in the loss of that association’s right to participate in the
procedure and, by extension, also of its right to, or interest in,
the award of the contract for execution of the works? Is such
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’

Appeal brought on 19 February 2001 by Chronopost SA
against the judgment delivered on 14 December 2000 by
the Fourth Chamber (Extended Composition) of the Court
of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX),
DHL International, Federal Express International (France)
and CRIE and the Commission of the European Communi-
ties, supported by the French Republic, Chronopost SA
and La Poste

(Case C-83/01 P)

(2001/C 150/18)

An appeal against the judgment delivered on 14 December
2000 by the Fourth Chamber (Extended Composition) of the
Court of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX), DHL
International, Federal Express International (France) and CRIE
and the Commission of the European Communities, supported
by the French Republic, Chronopost SA and La Poste, was
brought before the Court of Justice of the European Communi-
ties on 19 February 2001 by Chronopost SA, represented by
V. Bouaziz Torron and D. Berlin, Avocats, with an address for
service in Luxembourg.

The appellant claims that the Court should:

— quash the decision of the Court of First Instance of
14 December 2000 in so far as it annuls Article 1 of
Decision 98/365/EC on the ground that the Commission
should have considered whether, on account of La Poste’s
reserved rights, the charges applied by that undertaking
for services to its subsidiary were based on costs lower
than those which a private operator with no reserved
rights would have had to bear;

— declare that there is no need to refer the case back to the
Court of First Instance; and give final judgment in the
matter,
in accordance with the first paragraph of
Article 54 of the Statute of the Court of Justice;

— in those circumstances, and in so far as the Court of First
Instance rejected all the other pleas in law raised by UFEX
in support of its action for annulment, declare that the
action brought by UFEX contesting Decision 98/365/EC
was unfounded;

— in so far as, under Article 69(2) of the Rules of Procedure,
the unsuccessful party is to be ordered to pay the costs if
they have been applied for in the successful party’s
pleadings, and in so far as the pleadings submitted by
UFEX before the Court of First Instance in support of its
action for annulment must be rejected, UFEX and the
other applicants must be regarded as having been unsuc-
in their pleadings, order UFEX and the other
cessful
applicants to pay the costs;

— in the alternative, refer the case back to the Court of First
Instance for judgment and order UFEX and the other
applicants to bear the costs incurred by Chronopost in
the proceedings both before the Court of First Instance
and the Court of Justice.

C 150/10

EN

Official Journal of the European Communities

19.5.2001

Pleas and main arguments

— Infringement of Article 88 EC

— Infringement of Article 87 EC

the existence of aid for

Contrary to the position maintained by the Court of First
Instance,
the purposes of
Article 87 presupposes not only that an advantage be
conferred on an undertaking but also that that advantage
be financed directly or indirectly through State resources.

In holding that the Commission was under a duty to
consider whether La Poste’s reserved rights in the ordinary
mail sector enabled it to save so much on costs that its
charges for its services did not have to be based on
‘normal market conditions’, the Court of First Instance is
requiring the Commission to search for the causes of
postulated aid, whereas the Court has consistently held
that aid is not identified by its causes or the reasons for
State intervention, but by its effects.

Taking the criterion of the behaviour of a private investor
or operator, the Court of First Instance applies it, not to
the market in which the subsidiary conducts its business
and in which the services provided by the parent company
were used, but to the quite separate market in which the
parent company itself operates. Then it distorts once
again the rule set out in Article 87 EC by disregarding the
‘real life’ situation of public operators and contemplating
instead the situation of private operators as it ideally
should be, that is to say, it constructs a picture of an ideal
market on which an ideal form of competition is at play.
That approach, indirectly but inexorably, calls in question
the policies and measures adopted in recent years in
connection with the opening up of sectors previously not
exposed to competition. Ultimately, it would mean that,
even through the creation of subsidiaries and with
due respect for the principle of transparency, public
undertakings would no longer be able to compete on
those new markets. Also, to accept as a premiss that, in
the case of the public service managed by La Poste, La
Poste’s reserved rights constitute ‘State aid’ which enables
it to cut operating costs and which can be passed on to
its subsidiary in the form of undercharging for services,
implies a premature finding that La Poste receives State
aid for discharging its public service responsibilities and
that this must be removed so that the benefit cannot be
passed on to its subsidiary. That is tantamount to calling
in question, contrary to Article 16 EC, the subsidising of
public services; although, in any event, Article 87 EC
should not be applied to such funding, by virtue of
Article 86(2) EC. Lastly, the approach adopted by the
Court of First Instance appears at odds with the provisions
of Article 86(1) and 82 EC which endorse a costs-based
approach in relation to the fixing of rates for access to
the network.

In criticising the Commission for not considering whether
La Poste was in receipt of aid from the French State, the
Court of First Instance encourages the Commission to act
in breach of the procedure set out in Article 88(2) and in
disregard of the French Government’s right to a fair
hearing.

The Court of First Instance also rebukes the Commission
for failing to determine whether or not La Poste charged
its subsidiary not only its total costs but also the difference
between those and the costs which would have been
borne by La Poste if it had been a private operator with
no reserved market.
In so doing, the Court of First
Instance confuses procedures, out of a desire to ensure
that the entry on to a competitive market of a subsidiary
of a public undertaking is made in ‘normal’ conditions.

Appeal brought on 21 February 2001 by the Commission
of the European Communities against the judgment deliv-
ered on 14 December 2000 by the Fourth Chamber of the
Court of First Instance of the European Communitics
in Case T-105/99 between the Council of European
Municipalities and Regions (CEMR) and the Commission
of the European Communities

(Case C-87/01 P)

(2001/C 150/19)

An appeal against the judgment delivered on 14 December
2000 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-105/99 between the
Council of European Municipalities and Regions (CEMR) and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
21 February 2001 by the Commission of
the European
Communities, represented by P. Oliver and H.M.H. Speyart,
acting as Agents, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the judgment delivered by the Court of First
Instance on 14 December 2000 in Case T-105/99 and
draw all the legal consequences of the setting aside of
that judgment;

— order the applicant at first instance to pay the costs of the

present appeal.