Case C-221/01: Action brought on 5 June 2001 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2001-08-11
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, public service, systems interconnection, telecommunications

11.8.2001

EN

Official Journal of the European Communities

C 227/11

(a)

(b)

the packaging of the goods is to be regarded as the
shape of the goods for the purpose of Article 3(1)(e)
of the directive; and

the packaging of the goods may serve to designate
the (external) quality of the packaged goods for the
purpose of Article 3(1)(c) of the directive?

In the case of three-dimensional trade marks which
consist of the packaging of goods which are normally
traded in packaged form does the establishment of
distinctive character within the meaning of Article 3(1)(b)
of the directive turn on whether or not the average
consumer, who is reasonably well-informed and reason-
ably observant and circumspect, is able to recognise the
characteristic features of
trade
mark applied for, which differ from the norm or custom
in the sector and are therefore decisive as regards its
capability of serving as an indication of origin, even
without conducting an analytical or comparative examin-
ation or without paying particular attention?

the three-dimensional

Can the necessary assessment of distinctive character be
made solely on the basis of the relevant national trade
perceptions without further official investigations being
necessary to establish whether and to what extent ident-
ical or comparable trade marks have been registered or
refused registration in other Member States of the Euro-
pean Union?

2.

3.

(1) OJ L 40 of 11.2.1989, p. 1.

Action brought on 5 June 2001 by the Commission of the
European Communities against the Kingdom of Belgium

(Case C-221/01)

(2001/C 227/18)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 5 June
2001 by the Commission of the European Communities,
represented by H. van Lier, acting as Agent, with an address
for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— Declare, pursuant to Article 226 EC, that by failing to
adopt all the laws, regulations or administrative pro-
visions necessary to comply with Directive 97/33/EC of
the European Parliament and of the Council of 30 June
1997 on interconnection in Telecommunications with
regard to ensuring universal service and interoperability
through application of the principles of Open Network
Provision (ONP) (1), in particular with Articles 7(5), 9(3)
and 14(1) and (2) thereof, Belgium has failed to fulfil its
obligations under that directive; and

— Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

— Failure correctly to transpose Article 7(5) of Directive
97/33/EC: under the last two sentences of the second
subparagraph of Article 7(5) of Directive 97/33, com-
pliance with the cost accounting system must be verified.
The Directive states that a statement concerning com-
pliance must, in addition, be published annually. Those
obligations are not included in the Belgian legislation.

— Failure correctly to transpose Article 9(3) of Directive
97/33/EC: the provisions communicated by the Belgian
authorities as implementing measures, namely the fifth
subparagraph of Article 109B(4) of the Law of 21 March
1991 and Articles 8 and 12 of a decree of 20 April 1999,
only partially cover the obligations imposed by the
Directive, since Article 109B(4) concerns solely the
obligation imposed by the Belgian legislature on organis-
ations with ‘significant [market] power’ to publish a
reference offer which may be used as a basis for
subsequent negotiations; it is that reference offer which
may be changed by the Institute, a possibility which
clearly cannot be construed as a right of intervention in
favour of that institute in any negotiation or discussion
concerning an interconnection agreement. Nor do the
provisions of the Decree of 20 April 1999 provide for
the regulatory authorities to be able to intervene in the
negotiations ‘on their own initiative at any time’.

— Failure correctly to transpose Article 14(1) and (2): in
respect of
the information relating to the reference
interconnection offer, which is identified in Article 7(3)
of the Directive, and the main elements of the national
numbering plans referred to in Article 12(4) of the
Directive, the Belgian authorities have opted for a means
of communication in accordance with Article 14(2)
of the Directive, whereas Article 7(3)
is covered by
Article 14(1) which requires easy access to the infor-
mation and therefore access which is more direct than
that by individual request. In respect of the information
referred to in Article 9(2) of
the Directive (general
interconnection) and the information
conditions of
referred to in Article 10 of the Directive, the Belgian
legislation does not provide for any publication or
communication in any form whatever. Finally, in respect
of the information referred to in Article 9(3) of the
Directive, the Belgian legislation still does not provide for
access at the request of interested parties.

(1) OJ L 199 of 26.07.1997, p. 32.