Case C-244/02: Reference for a preliminary ruling by the korkein hallinto-oikeus by order of that Court of 1st July 2002 in the appeal brought by Kauppatalo Hansel Oy
Date: 2002-09-14
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, invitation to tender, offer price, supplies contract

14.9.2002

EN

Official Journal of the European Communities

C 219/3

In the event that the answer to Question 1 is no:

Question 2:

Question 2:

Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular
public contract if — in addition to its participating in the
public procurement procedure — it takes all steps available to
it under national
law to prevent the contract from being
awarded to another bidder?

Question 3:

in conjunction with Article 2(1)

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts,
thereof, to be
interpreted as meaning that an undertaking must be afforded
the opportunity in law to seek review of an award procedure
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.

( 1) OJ L 395 [1989], p. 33.

In the event that the answer to Question 1 is no:

Is the abovementioned provision of
the Directive to be
construed in such a way that — where a bid was eliminated
otherwise than in accordance with the law but the review body
in the course of its review procedure assumes and establishes
as a preliminary matter that the bid had properly to be
eliminated — the tenderer of that bid is entitled to bring an
application in respect of an alleged infringement of the law —
in the present case the contracting authority’s decision to make
the award to another bidder — because owing to the
contracting authority’s defective award procedure the applicant
may in any event be presumed to have suffered loss and
errors in the award procedure can no longer be remedied
subsequently in the review procedure by substitution of
decisions of the contracting authority, and the review pro-
cedure must therefore be available to the applicant?

(1) OJ L 395 [1989], p. 33.

Reference for a preliminary ruling by the Bundesverga-
beamt (Republic of Austria) by order of that Court of
14 May 2002 in the case of Neumayer Bau Ges.m.b.H
against Abwasserverband Grossraum Bruck an der Leitha
— Neusiedl/See

Reference for a preliminary ruling by the korkein hallinto-
oikeus by order of that Court of 1st July 2002 in the
appeal brought by Kauppatalo Hansel Oy

(Case C-231/02)

(2002/C 219/05)

(Case C-244/02)

(2002/C 219/06)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Republic of Austria) of 14 May 2002, received at the Court
Registry on 20 June 2002, for a preliminary ruling in the
case of Neumayer Bau Ges.m.b.H against Abwasserverband
Grossraum Bruck an der Leitha — Neusiedl/See on the
following questions:

Question 1:

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts (1) to be broadly interpreted as meaning that under it
entitlement to apply for a review procedure must be available
to any person seeking to receive a specific public contract
whose award is pending, irrespective of whether such person
has suffered or may suffer loss as a result of the alleged
infringement of the law?

Reference has been made to the Court of
Justice of the
European Communities by order of the korkein hallinto-
oikeus (Supreme Administrative Court) of 1st
July 2002,
received at the Court Registry on 4 July 2002, for a preliminary
ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:

1.

Is Council Directive 93/36/EEC (1) of 14 June 1993
coordinating procedures for the award of public supply
contracts to be interpreted as meaning that a contracting
authority which has commenced a tender procedure on
the lowest price may discontinue the
the basis of
procedure without awarding a contract when it discovers
after examining and comparing the tenders that because
of the content of the invitation to tender it is not possible
for it to award a contract on the basis of the invitation to
tender in question in the most advantageous way from
the point of view of total costs?

C 219/4

EN

Official Journal of the European Communities

14.9.2002

2.

Is it of importance as regards the acceptability of discon-
tinuing the procedure that the content of the invitation
to tender is defective because of the incorrectness of the
assessment previously made by the contracting authority?

( 1) OJ L 199, p. 1.

Reference for a preliminary ruling by the korkein oikeus
by order of that Court of 3 July 2002 in the case
of Anheuser-Busch, Incorporated against Budéjovicky´
Budvar, národní podnik

(Case C-245/02)

(2002/C 219/07)

Reference has been made to the Court of Justice of the
European Communities by order of
the korkein oikeus
(Supreme Court) of 3 July 2002, received at the Court Registry
on 5 July 2002, for a preliminary ruling in the case of
Incorporated against Budéjovicky´ Budvar,
Anheuser-Busch,
národní podnik on the following questions:

1.

If the collision of a trade mark and a sign alleged to
infringe it is situated at a point in time before the entry
into force of the TRIPS Agreement, do the provisions of
the TRIPS Agreement apply to the question of which
right has the earlier legal basis, when the alleged infringe-
ment of the trade mark is said to continue after the date
on which the TRIPS Agreement entered into force in the
Community and the Member States?

2.

If the answer to Question 1 is affirmative:

(a) Can the trade name of an undertaking also act as a
sign for goods or services within the meaning of
the first sentence of Article 16(1) of the TRIPS
Agreement?

(b)

If the answer to Question 2(a) is affirmative, on
what conditions may a trade name be regarded as a
sign for goods or services within the meaning of
the first sentence of Article 16(1) of the TRIPS
Agreement?

3.

If the answer to Question 2(a) is affirmative:

(b)

If the answer to Question 3(a) is affirmative:

How is the said reference in the third sentence of
Article 16(1) of the TRIPS Agreement to existing
prior rights to be interpreted in the case of a trade
name which is not registered or established in the
State in which the trade mark is registered and in
which protection is sought for the trade mark
against the trade name in question, having regard to
the obligation under Article 8 of the Paris Conven-
tion to afford protection to a trade name regardless
of whether it is registered and to the fact that the
permanent appellate body of the WTO has regarded
the reference in Article 2(1) of the TRIPS Agreement
to Article 8 of the Paris Convention as meaning
that WTO members are obliged under the TRIPS
Agreement to protect trade names in accordance
with the latter article? When assessing, in such a
case, whether a trade name has a legal basis prior to
a trade mark for the purposes of the third sentence
of Article 16(1) of the TRIPS Agreement, may it thus
be considered as decisive:

(i) whether the trade name was well-known at
least to some extent among the relevant trade
circles, in the State in which the trade mark is
registered and in which protection is sought
for it, before the point
in time at which
registration of the trade mark was applied for
in the State in question; or

(ii) whether the trade name was used in commerce
directed to the State in which the trade mark is
registered and in which protection is sought
for it before the point
in time at which
registration of the trade mark was applied for
in the State in question; or

(iii) what other factor may decide whether the trade
name is to be regarded as an existing prior
right within the meaning of the third sentence
of Article 16(1) of the TRIPS Agreement?

Action brought on 9 July 2002 by Portuguese Republic
against Commission of the European Communities

(Case C-249/02)

(2002/C 219/08)

(a) How is the reference in the third sentence of Article
16(1) of the TRIPS Agreement to existing prior
rights to be interpreted? May the right to a trade
name also be regarded as an existing prior right
within the meaning of the third sentence of Article
16(1) of the TRIPS Agreement?

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 July 2002 by the Portuguese Republic,
represented by Luis Fernandes, acting as Agent, and Carlos
Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
address for service in Luxembourg.