Case C-21/03: Reference for a preliminary ruling by the Conseil d'État, section d'administration (Belgium) by judgment of that Court of 27 December 2002 in the case of Fabricom SA against l'État belge
Date: 2003-03-08
Institutions: Court of Justice
Subjects: competition, energy production, energy transport, interpretation of the law, means of public conveyance, public contract, telecommunications

C 55/16

EN

Official Journal of the European Union

8.3.2003

Pleas in law and main arguments

The Republic of Austria neither transposed the principle of
priority contained in Article 3(1) of Directive 75/439/EEC
in the version contained in Directive 87/101/EEC (2) not
demonstrated that such priority was precluded by technical,
financial or organisational constraints.

Priority in favour of ‘regeneration’ or (in Austrian terminology)
‘recycling’ as opposed to ‘combustion’ or (in Austrian termin-
ology) ‘energy conversion’ cannot be inferred from the Austri-
an legal provisions. Rather those provisions refer to recycling
and energy conversion in the same context without according
priority to one of the two methods of treatment over the
other.

The arguments relied on by the Republic of Austria in order to
substantiate the existence of preclusive technical, financial and
organisational constraints, that is to say that owing to the
small quantity of waste oil regeneration in Austria is unecon-
omical; that for ecological reasons no clear advantages is to be
gained from recycling; that there is no reprocessing plant
in Austria for waste oils, are in the Commission’s view
unconvincing since they merely seek to perpetuate in Austria
the existing status quo and do not indicate that any endeavours
have been made in order to meet the directive’s requirements.

( 1) OJ 1975 L 194, p. 31.
( 2) OJ 1987 L 42, p. 43.

(b) has offered them for sale in the trademark owner’s
own shops or those of a related company within the
common market but a sale of the goods has not
taken place?

2.

If goods have been put on the market under one of the
above alternatives and exhaustion of the trademark right
thereby occurs without there having been a sale of the
goods, can a trademark owner interrupt exhaustion by
returning the goods to a warehouse?

3. Are goods to be regarded as having been put on the
market by virtue of the fact that they have been sold by
the trademark owner to another company in the internal
market, if, upon the sale, the trademark owner imposed a
restriction on the buyer under which he was not entitled
to resell the goods in the common market?

4.

Is the answer to question 3 affected if the trademark
owner, upon selling the consignment to which the goods
belonged, gave the buyer permission to resell a small part
of the goods in the common market but did not specify
the individual goods to which that permission applied?

Reference for a preliminary ruling by the Conseil d’État,
section d’administration (Belgium) by judgment of that
Court of 27 December 2002 in the case of Fabricom SA
against l’État belge

Reference for a preliminary ruling by the Hovrätten över
Skåne och Blekinge by order of that Court of 19 December
2002 in the case of Peak Holding AB against Axolin-
Elinor AB (formerly Handelskompaniet Factory Outlet i
Löddeköpinge AB)

(Case C-21/03)

(2003/C 55/29)

(Case C-16/03)

(2003/C 55/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Hovrätten över Skåne
och Blekinge (Court of Appeal for Skåne and Blekinge) of
19 December 2002, received at the Court Registry on 15 Janu-
ary 2003, for a preliminary ruling in the case of Peak Holding
AB against Axolin-Elinor AB (formerly Handelskompaniet
Factory Outlet i Löddeköpinge AB) on the following questions:

1. Are goods to be regarded as having been put on the
market by virtue of the fact that the trademark owner:

(a) has imported them into the common market and
paid import duty on them, with the intention that
they be sold there?

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Conseil d’État,
section d’administration (Council of State, administrative sec-
tion) (Belgium) of 27 December 2002, received at the Court
Registry on 22 January 2003, for a preliminary ruling in the
case of Fabricom SA against l’État belge (Belgian State) on the
following questions:

1. Do Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities
operating in the water, energy, transport and telecom-
munications sectors (1), and in particular Article 4(2)
thereof, and Directive 98/4/EC (2) of 16 February 1998 of
the European Parliament and of the Council amending
Directive 93/38/EEC, in conjunction with the principle of
proportionality,
trade and industry and
respect for the law of property guaranteed in particular
by the protocol of 20 March 1992 to the Convention for
the Protection of Human rights and Fundamental

freedom of

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Official Journal of the European Union

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Freedoms, preclude the barring of the submission of an
application to participate in or a tender for a public
contract for works, supplies or services by any person
who has been responsible for research, testing, study or
development in respect of those works, supplies or
services where that person has not been given an
opportunity to prove that, in the circumstances of the
case, the experience he has acquired could not distort
competition?

2. Would the answer to the preceding question be different if
the abovementioned directives, considered in conjunction
with the same principle, freedom and law, were interpret-
ed as covering only private undertakings or undertakings
which had supplied gratuitous services?

3.

Can Council Directive 92/13/EEC of 25 February 1992
coordinating the laws, regulations and administrative
provisions relating to the application of Community rules
on the procurement procedures of entities operating in
the water, energy, transport and telecommunications
sectors (3), and in particular Articles 1 and 2 thereof, be
interpreted as meaning that a contracting entity may
exclude, up to the end of the process of evaluation of
from participation in the procedure or
the tenders,
submission of a tender, an undertaking connected to any
person who has been responsible for the research, testing,
study or development in respect of the works, supplies or
services, although when questioned in that regard by the
contracting authority that undertaking declares that it has
gained therefrom no unfair advantage of a nature such as
to distort the normal conditions of competition?

( 1) OJ L 199 of 09.08.1993, p. 84.
( 2) OJ L 101 of 01.04.1998, p. 1.
( 3) OJ L 76 of 23.03.1992, p. 14.

Removal from the register of Case C-304/99 (1)

(2003/C 55/31)

By order of 15 November 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-304/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): F. Apollonio & C. SpA v
Ministero delle Finanze.

(1) OJ C 333 of 20.11.1999.

Removal from the register of Case C-305/99 (1)

(2003/C 55/32)

By order of 15 November 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-305/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Leglerdata SpA v Ministero
delle Finanze.

(1) OJ C 333 of 20.11.1999.

Removal from the register of Case C-303/99 (1)

Removal from the register of Case C-358/99 (1)

(2003/C 55/30)

(2003/C 55/33)

By order of 15 November 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-303/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Markfactor SpA v Ministero
delle Finanze.

By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-358/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Tecnologie Meccaniche
Avanzate Srl (TMA) v Ministero delle Finanze.

( 1) OJ C 333 of 20.11.1999.

(1) OJ C 352 of 4.12.1999.