Case C-340/02: Action brought on 24 September 2002 by Commission of the European Communities against French Republic
Date: 2002-11-23
Institutions: Court of Justice
Subjects: action for annulment (EU), award of contract, public contract, water treatment

C 289/12

EN

Official Journal of the European Communities

23.11.2002

enables the relevant class of persons to distinguish the
services in question from services of another business
source. Instead the Court based its view that the sign in
question fell within the scope of Article 7(1)(b) of the
Regulation on the fact that it did not satisfy criteria for
protection governed by other provisions. It interprets
Article 7(1)(b) as a catch-all provision for cases in which
the trade marks applied for, despite having descriptive
character, do not fall within the scope of the grounds
for rejecting protection under Article 7(1)(c) of the
Regulation.

The splitting by the Court of the trade mark ‘SAT.2’ into
its component parts does not reflect
the view and
approach adopted by consumers. The distinctive charac-
ter or lack of distinctive character of the trade mark must
to some degree be apparent ‘at first sight’.

(in the alternative)

— Infringement of the principle of equal treatment: it may
be correct that a person cannot rely on a failure to apply
the law which has benefitted another person. In the
present case, however, the appellant did not point to
wrongly-decided isolated cases, but to the Office’s clearly
recognisable general practice of allowing in principle
applications for registration of trademarks consisting of a
combination of numbers and descriptive indications/
abbreviations. The appellant refers in this connection in
particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
920 157) and ‘B-MAIL’ (000 896 399).

at the Court Registry on 23 September 2002, for a preliminary
ruling in the proceedings between Saatgut-Treuhandverwal-
tungs-GmbH and Brangewitz GmbH on the following ques-
tions concerning the interpretation of Article 14(3), sixth
indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
1994 on Community Plant variety rights (OJ 1994 L 227,
p. 1) in conjunction with Article 9 of Commission Regulation
(EC) No 1768/95 (2) of 24 July 1995:

1. Are the abovementioned provisions to be interpreted as
meaning that the holder of a variety protected under
Regulation No 2100/94 can request the supplier of
processing services or the processor to provide the
information specified in those provisions, regardless of
whether there is any evidence that
the supplier of
processsing services has supplied a processing service in
respect of the protected variety concerned or that the
processor has processed the protected variety concerned?

2.

If there must be evidence for the factual situation referred
to in Question 1:

Must the supplier of processing services or processor
provide information pursuant
to Article 14(3), sixth
indent, of Regulation No 2100/94 in conjunction with
Article 9 of Regulation No 1768/95 with regard to all the
farmers to whom he has supplied the processing service
in respect of the protected variety concerned and/or for
whom he has carried out the processing of the protected
variety concerned, or only with regard to those farmers
in respect of whom the holder has evidence that the
supplier of processing services has supplied processing
services in respect of the protected variety concerned
and/or the processor has carried out the processing of the
protected variety concerned?

( 1) OJ 2002 C 202, p. 23.
( 2) OJ 2001 C 4, p. 5.

(1) OJ L 227, p. 1.
(2) OJ L 173, p. 14.

Reference for a preliminary ruling by the Landgericht
Düsseldorf by order of that Court of 17 September 2002
in the proceedings between Saatgut-Treuhandverwal-
tungs-GmbH and Brangewitz GmbH

Action brought on 24 September 2002 by Commission
of the European Communities against French Republic

(Case C-336/02)

(2002/C 289/20)

(Case C-340/02)

(2002/C 289/21)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Düsseldorf
(Regional Court, Düsseldorf) of 17 September 2002, received

An action against the French Republic was brought before the
Court of Justice of the European Communities on 24 Septem-
ber 2002 by the Commission of the European Communities,
represented by M. Nolin, acting as Agent, with an address for
service in Luxembourg.

23.11.2002

EN

Official Journal of the European Communities

C 289/13

The applicant claims that the Court should:

— declare that, when the municipal community of Le Mans
awarded a contract with the purpose of assisting the
person responsible for the Chauvinière sewage treatment
works to carry out a study into it without previously
publishing a tender notice in the Official Journal of the
European Communities, the French Republic failed to
fulfil its obligations under Directive 92/50/EEC (1) and in
particular Article 15(2) thereof;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the tender for the study
into the works which concerned services other than those
involved in the call for proposals launched by the notice
published in the Official Journal of the European Communities
on 30 November 1996 should have been published and
should have been the subject of a new tender in compliance
with the obligations laid down by Directive 92/50/EEC. The
direct award of that contract to the successful tenderer of the
call for proposals was unauthorised. Nor can it be justified on
the basis of a reference in the notice of 30 November 1996
according to which ‘the tenderer whose solution is accepted in
the context of the competition for proposals may be invited to
become involved in the implementation of his idea as part of
a study intended to ... assist the person responsible for the
works’.

( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (JO L 209 of 24.7.1992, p. 1).

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 27 September
2002 in the proceedings between 1. Pearle B.V., 2. Hans
Prijs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and
Hoofdbedrijfschap Ambachten

(Case C-345/02)

(2002/C 289/22)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of

der Nederlanden (Supreme Court of the Netherlands) of
27 September 2002, received at
the Court Registry on
30 September 2002, for a preliminary ruling in the proceed-
ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
the following questions:

(1)

Is a scheme such as that under consideration, in which
levies are imposed to finance collective advertising cam-
paigns, to be regarded as (part of a measure of) aid within
the meaning of Article 92(1) of the EC Treaty, and must
the plans to implement it be notified to the Commission
under Article 93(3) of the EC Treaty? Does that apply
only to the benefit derived from the scheme, in the form
of the organisation and provision of collective advertising
campaigns, or does it also apply to the method of
financing it, such as a bye-law instituting levies and/or
the decisions imposing levies based thereon? Does it
make any difference whether the collective advertising
campaigns are offered to (undertakings in) the same
business sector as that on which the levy decisions in
question are imposed? If so, what difference does it make?
Is it relevant in that connection whether the costs incurred
by the public body are offset in full by the earmarked
levies payable by the undertakings benefiting from the
service, so that the benefit derived costs the public
authorities, on balance, nothing? Is it relevant in that
connection whether the benefit from the collective adver-
tising campaigns is distributed more or less evenly across
the field of activity concerned and whether the individual
establishments within the branch are also deemed, on
balance, to have derived a more or less equal benefit or
profit from those campaigns?

(2) Does the obligation to notify under Article 93(3) apply
to any aid or only to aid which satisfies the definition in
Article 92(1)? In order to avoid its obligation to notify,
does a Member State have free discretion to determine
whether aid satisfies the definition in Article 92(1)? If so,
how much discretion? And to what extent can such
free discretion affect
the obligation to notify under
Article 93(3)? Or is it the case that the obligation to
notify ceases to apply only if it is beyond reasonable
doubt that no aid is involved?

(3)

it

is involved, must

If the national court concludes that aid within the
then
meaning of Article 92(1)
consider the ‘de minimis’ rule, as formulated by the
Commission in a notice published in OJ 1992 C 213 (and
subsequently in OJ 1996 C 68), when assessing whether
the measure in question is to be regarded as aid which
ought to have been notified to the Commission under
Article 93(3)? If so, must that ‘de minimis’ rule also be
applied with retroactive effect to aid which was granted
before the publication of the rule, and how must that ‘de
minimis’ rule be applied to aid such as annual collective
advertising campaigns which benefit an entire branch of
industry?