Case C-249/02: Action brought on 9 July 2002 by Portuguese Republic against Commission of the European Communities
Date: 2002-09-14
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, EU competence, Portugal, action for annulment (EU), agricultural expenditure, legality

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.

14.9.2002

EN

Official Journal of the European Communities

C 219/5

The applicant claims that the Court should:

— annul the decision of 18 April 2002 of the Director
General of the Directorate General for Agriculture of the
European Commission bearing reference number AGRI/
G/4-D11703, headed ‘Portugal — EAGGF — Guarantee
— 2002 — Application of Article 39(3) of Commission
Regulation (EC) No 1750/99 (1) — Correction to
advances’;

— order the defendant institution to pay the costs.

Pleas in law and main arguments

— Lack of competence:

— The Director General of the Directorate General

for
Agriculture does not possess the power to adopted a
measure such as that at issue in the present case, so that,
since he has not had any powers delegated to him, he has
acted ultra vires.

— By basing the calculation for the reduction on a value
which had not yet been approved by the Commission
and which he himself fixed, the Director General exceeded
his powers, thus infringing Article 7(3) of Regulation No
(EC) 1258/1999. (2)

— Error in law: The contested decision does not have any
legal basis whatever. It was approved on the basis of
Regulation (EC) No 1750/1999 which was no longer in
force at the time when it was approved.

— Manifest error in the application of Article 39(4) of
Regulation (EC) No 1750/1999: Even if it were accepted
that Regulation (EC) No 1750/1999 applies in the present
case, only 2001 may be regarded as the year in which was
submitted the first declaration of expenditure incurred in
respect of the rural development programming docu-
in accordance with Regulation (EC) No 1257/
ments,
1999. (3) Funding for rural development for 2000 was
received by Portugal under the former common agricul-
tural policy accompanying measures for 1992. For that
reason, by virtue of Article 4 of Regulation (EC) No 1750/
1999, the penalties provided for in Article 3 of that
regulation cannot be applied in respect of the 2001
financial year.

— Manifest error in the application of the scheme provided
for in Article 39(3) of Regulation (EC) No 1750/1999.

— Plea of illegality: illegality of Article 49(5) of Regulation
(EC) No 445/2002 (4) in that it is contrary to the principle
of non-retroactivity of legislative provisions: should the
contested measure be understood as having been adopted
on the basis of Regulation (EC) No 445/2002 rather than
of Regulation (EC) No 1750/1999,
it would still be
defective on the ground that the scheme provided for by
Article 49(5) of the former regulation is invalid. The new
wording of Article 49(5) of Regulation (EC) No 445/
2002 provides, with retroactive effect, that the exemption
from the penalty initially provided for in Article 39(3) of
Regulation (EC) No 1750/1999 — which corresponds to
the current Article 49(4) of Regulation (EC) No 445/2000
— may be applied only to the expenditure declaration
submitted in 2000. Nevertheless, despite having been
submitted in time by the national authorities, the three
RDPs for Portugal were not approved by the Commission
until the 2001 financial year, thus rendering it materially
and logically impossible for a declaration to be submitted
in 2000 for expenditure incurred in respect of pro-
grammes which were not approved until
the 2001
financial year. The Commission’s aim in retrospectively
amending the provision at issue was to prevent arbitrarily
the application of the exemption under Article 39(4)
of Regulation (EC) No 1750/1999, without the least,
plausible, reason.

— Manifest error in the application of the scheme provided
for in Article 49(4) of Regulation (EC) No 445/2002.

— Breach of the obligation to provide a statement of reasons

required by Article 253 of the EC Treaty.

(1) Commission Regulation (EC) No 1750/1999 of 23 July 1999
laying down detailed rules for the application of Council Regu-
lation (EC) No 1257/1999 on support for rural development from
the European Agricultural Guidance and Guarantee Fund (EAGGF)
(OJ 1999 L 214, p. 31).

(2) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ 1999 L 160,
p. 13).

(3) Council Regulation (EC) No 1257/1999 of 17 May 1999 on
support for rural development from the European Agricultural
Guidance and Guarantee Fund (EAGGF) and amending and
repealing certain Regulations (OJ 1999 L 160, p. 80).

(4) Commission Regulation (EC) No 445/2002 of 26 February
2002 laying down detailed rules for the application of Council
Regulation (EC) No 1257/1999 on support for rural development
from the European Agricultural Guidance and Guarantee Fund
(EAGGF) (OJ 2002 L 74, p. 1).