Case C-155/02: Action brought on 26 April 2002 by the Commission of the European Communities against the Republic of Austria
Date: 2002-07-13
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, air quality, prevention of pollution, waste incineration

C 169/16

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

The judgment of
Instance infringed
the Court of First
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well
as the ‘right to sound administration’ and the Commission’s
in so far as it inferred that
‘general duty of supervision’,
to have their complaint under
individuals have a right
Article 90 of the EC Treaty (now Article 86 EC) dealt with and
a corresponding right of action. Moreover,
it erroneously
inferred that complaints by individuals in the context of
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of
First Instance has at any rate infringed Article 90(3). If so, and
in so far as it based its conclusions thereon it has also infringed
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.

(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v

Commission [2002] ECR II-0000.

Appeal brought on 25 April 2002 by Streamserve Inc.
against the judgment delivered on 27 February 2002 by
the Fourth Chamber of the Court of First Instance of
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case C-150/02 P)

(2002/C 169/29)

An appeal against the judgment delivered on 27 February
2002 by the Fourth Chamber of the Court of First Instance
of the European Communities in case T-106/00 between
Streamserve Inc. and the Office for Harmonization in the
Internal Market
(OHIM), was
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.

(Trade Marks and Designs)

in the Internal Market (Trade Marks and Designs) did not
infringe Article 7 (1)
(c) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community
trade mark (2) in adopting its decision of 28 February
2000 (Case R 423/1999-2) with the exception as regards
goods in the categories ‘manuals and publications’;

2.

3.

for the rest, annul the decision of the Second Board of
Appeal of the Office for Harmonization in the Internal
Market (Trade Marks and Designs) of 28 February 2000
(Case R 423/1999-2);

order the Office for Harmonization in the Internal Market
(Trade Marks and Designs) to pay the costs both at first
instance and on appeal.

Pleas in law and main arguments

The Appellant maintains that the Court of First Instance
misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
held that the aforementioned article prevents the signs or
indications referred to in that provision from being reserved
to one undertaking alone because they have been registered as
a mark and that the provision thus pursues an aim which is in
the public interest, namely that such signs or indications may
be freely used by all.

In the Appellant’s view the criteria applied by the Court of
First Instance in the application of Article 7 (1) (c) to the facts
of the case are too severe.

(1) OJ C 176, 24.6.2000, p. 29.
(2) OJ L 11, 14.1.1994, p. 1.

Action brought on 26 April 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-155/02)

(2002/C 169/30)

The Appellant claims that the Court should:

1.

annul the judgment of the Court of First Instance of
27 February 2002 in case T-106/00, Streamserve Inc. v.
OHIM (‘STREAMSERVE’), in so far as it found that the
Second Board of Appeal of the Office for Harmonization

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 26 April
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
Kirchberg, Luxembourg.

13.7.2002

EN

Official Journal of the European Communities

C 169/17

The applicant claims that the Court should:

— declare that by:

Reference for a preliminary ruling by the Republic of
Austria Oberster Gerichtshof by order of that Court of
22 March 2002 in the case of Rieser Internationale
Transporte GmbH against ASFINAG Autobahnen- und
Schnellstraßen Finanzierungs-Aktiengesellschaft

(1) not fully transposing into Austrian law by 1 January
1995, contrary to Article 166 of
the Act of
Accession of Austria, Sweden and Finland to the
European Union, Council Directive 89/369/EEC of
8 June 1989 on the prevention of air pollution from
new municipal waste incineration plants (1) and
Council Directive 89/429/EEC of 21 June 1989 on
the reduction of air pollution from existing munici-
pal waste-incineration plants (2), in so far as it has
not transposed those directives as required into
the Abfallwirtschaftsgesetz (Federal
law on waste
management), the Gewerbeordnung 1994 (Austrian
Trade Code of 1994) and the laws of the federal
states, or, in any event, not informing the Com-
mission of any such transposition, and

(2) not correctly or not fully transposing Article 4(1) of
Directive 89/369/EEC into the Luftreinhaltegesetz
für Kesselanlagen (Law on control of air pollution
from boiler plants) and the Luftreinhalteverordnung
für Kesselanlagen (Decree on control of air pollution
from boiler plants), the Republic of Austria has
failed to fulfil its obligations under those directives;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

— Incomplete transposition of Directives 89/369/EEC and

89/429/EEC:

The Republic of Austria does not dispute that, with the
exception of the legislative provisions notified to the
Commission as transposing those directives (the Law and
Decree on control of air pollution from boiler plants), the
directives have not been transposed into Austrian law
and, in particular, they have not been transposed into the
Federal law on management of waste, the Austrian Trade
Code of 1994, the Umweltverträglichkeitsprüfungsgesetz
(Law on environmental impact assessments) and the laws
of the federal states on waste management.

— Incorrect transposition of Article 4(1) of Directive 89/
369/EEC in the Decree on control of air pollution from
boiler plants: that decree does not contain any of the
technical requirements laid down in Article 4(1) of
Directive 89/369/EEC.

(1) OJ L 163, 14.6.1989, p. 32.
(2) OJ L 203, 15.7.1989, p. 50.

(Case C-157/02)

(2002/C 169/31)

Reference has been made to the Court of Justice of the
European Communities by order of the Republic of Austria
Oberster Gerichtshof (Supreme Court) of 22 March 2002,
received at the Court Registry on 29 April 2002, for a
preliminary ruling in the case of Rieser Internationale Trans-
porte GmbH against ASFINAG Autobahnen- und Schnellstraß-
en Finanzierungs-Aktiengesellschaft on the following ques-
tions:

1.1.
Is the effect of the case-law of the Court of Justice on
the ‘functional concept of the State’ that, when concluding
contracts with road users, the defendant is required to observe
the directly effective provisions of Council Directive 93/89/
EEC of 25 October 1993(1) on the application by Member
States of taxes on certain vehicles used for the carriage of
goods by road and tolls and charges for the use of certain
infrastructures and of Directive 1999/62/EC of the European
Parliament and of the Council of 17 June 1999 (2) on the
charging of heavy goods vehicles for the use of certain
infrastructures, such that the defendant cannot charge a higher
toll than those provisions allow?

1.2.

If question 1.1 is answered in the affirmative:

1.2.1.
Do Article 7(b) and (h) of Directive 93/89 and
Article 7(4) and (9) of Directive 1999/62 have direct effect
according to the case-law of the Court of Justice such that if
the Directives have not been transposed, or have been
transposed incorrectly, into Austrian law they may be relied
on in calculating a toll that complies with the Directives for
vehicles with more than three axles used for the carriage of
goods on the full itinerary of the Austrian Brenner motorway?

1.2.2.

If question 1.2.1 is answered in the affirmative:

How and by reference to what parameters is the
1.2.2.1.
authorised toll for a single journey on the full itinerary to be
calculated in the individual case?