Case C-38/03: Action brought on 3 February 2003 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-03-22
Institutions: Court of Justice
Subjects: Belgium, EC conformity marking, European Commission, action for failure to fulfil an obligation, medical device, social-security benefit, technical regulations

C 70/14

EN

Official Journal of the European Union

22.3.2003

Pleas in law and main arguments

3.

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

Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 10 July 2001 without Ireland having enacted the
provisions necessary to comply with the directive referred to
in the conclusions of the Commission.

( 1) OJ L 175, 10.07.1999, p. 43.

Appeal brought on 3 February 2003 by BioID AG, in
liquidation, against the judgment delivered on
judicial
5 December 2002 by the Second Chamber of the Court
of First Instance of the European Communities in Case
T-91/01 between BioID AG, in judicial liquidation, and
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case C-37/03 P)

(2003/C 70/23)

An appeal against the judgment delivered on 5 December
2002 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-91/01 between BioID
AG, in judicial liquidation, and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) was brought
before the Court of Justice of the European Communities
on 3 February 2003 by BioID AG,
liquidation,
represented by Dr Axel Nordemann, Rechtsanwalt, Boehmert
& Boehmert, Meinekestr. 26, D-10719 Berlin, with an address
for service in Luxembourg.

in judicial

The appellant claims that the Court should:

set aside the judgment of the Court of First Instance of
5 December 2002 in Case T-91/01 BioID AG v Office for
Harmonisation in the Internal Market (OHIM) (1);

1.

2.

Pleas and main arguments

— Incorrect, overly broad interpretation of the absolute
ground for refusal set out in Article 7(1)(b) of Council
Regulation No 40/94 on the Community trade mark:
from the point of view of the average consumer, the
mark applied for serves to identify the goods and services
in respect of which registration is sought as originating
from the appellant and, accordingly, to distinguish those
goods and services from those of other undertakings.
Considered as a whole, the sign consisting of a word
element and additional graphic elements undoubtedly
performs the function of providing a guarantee that all
the goods or services bearing it have originated under the
control of a single undertaking which is responsible for
their quality.

— Had the Court of First Instance correctly interpreted the
absolute ground for refusal set out in Article 7(1)(b), it
would have had to examine the further plea alleging
infringement of Article 7(1)(c) and to reach the con-
clusion, on the basis of its findings of fact, that the mark
applied for was also not caught by the absolute ground
for refusal set out therein which applies where the signs
or indications of which a mark consists are of an
exclusively descriptive nature. In that regard, the Court of
Justice may, since the state of the proceedings so permits,
give final judgment as provided by Article 54 of the
Statute of the Court.

(1) Not yet published in the Official

Journal of

the European

Communities.

Action brought on 3 February 2003 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-38/03)

(2003/C 70/24)

annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 20 February 2001 in Appeal
R 538/1999-2;

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 3 February 2003 by the Commission of the European
Communities, represented by L. Ström F. Simonetti, acting as
Agents.

22.3.2003

EN

Official Journal of the European Union

C 70/15

The applicant claims that the Court should:

(a) Declare that,

— by laying down the technical criteria to be met by
wheelchairs in order to be eligible for reimbursement
by social security in such a way as to exclude from
the list of wheelchairs eligible for reimbursement
those bearing EC markings but which do not meet
the relevant criteria, namely, as regards the diameter
of the front and rear wheels, the cover and filling of
the seat and back, the dimensions of the flat sections
and crossbars, head rests and/or foot or leg rests;

— by laying down more general criteria which the
economic operator must meet
to be
included on the list of reimburseable wheelchairs,
namely special conditions for manual wheelchairs,
as well as special conditions for power wheelchairs
according to which such wheelchairs must be avail-
able in a minimum number of seat sizes;

in order

— by having been too rigid in its updating of the list of
equipment eligible for the reimbursement scheme,
the Kingdom of Belgium has failed to fulfil
its
obligations under Article 28 EC;

(b) Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

is decisive in the choice of

Wheelchairs are medical devices within the meaning of Council
Directive 93/42/EEC of 14 June 1993 concerning medical
devices (1). It follows that wheelchairs bearing an EC marking,
provided for in Article 17 of that directive, must be freely
placed on the market in all the Member States. Eligibility for
reimbursement determines to a large extent access to the
Belgian market in wheelchairs, the cost of which is in many
cases considerable and in respect of which eligibility for
reimbursement
the patient.
Keeping in place technical criteria conditioning eligibility for
reimbursement of wheelchairs is not justified by public health
reasons, since all wheelchairs bearing EC markings are deemed
to satisfy the safety criteria laid down by Directive 93/42/EEC.
Moreover, the Belgian authorities have not shown in what way
making reimbursement for wheelchairs contingent on the
satisfaction of certain technical criteria could contribute to
maintaining the financing of the health insurance system in
equilibrium. The requirement that wheelchairs should be
available in a minimum range of chair sizes is not such as to
offer greater protection for the health and safety of users and
other persons. None of the objectives relied upon by the

Belgian authorities (reliable scale of costs for patients and
realities of the market) has to date been identified by the Court
of Justice as an overriding requirement capable of justifying a
measure having an effect equivalent to quantitative restrictions.
The Commission is of the view that a period of up to 9 months
for including on the list of reimburseable wheelchairs those
bearing EC markings which, accordingly, meet the require-
ments of public health and safety laid down in Directive 93/
42, cannot be considered to be reasonable.

(1) Council Directive 93/42/EEC of 14 June 1993 concerning medical

devices (OJ 1993 L 169, p. 1).

Appeal brought on 3 February 2003 by Commission of the
European Communities against the judgment delivered on
26 November 2002 by the Second Chamber, Extended
Composition, of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-74/00, T-76/00, T-83/
00 to T-85/00, T-132/00, T-137/00 and T-141/00 between
Artegodan GmbH, Bruno Farmaceutici and Others,
Schuck GmbH, Laboratorios Roussel Lda, Laboratoires
Roussel Diamant Sàrl, Roussel Iberica SA, Gerot Pharma-
zeutika GmbH, Cambridge Healthcare Supplies Ltd and
Laboratoires pharmaceutiques Trenker SA and Com-
mission of the European Communities

(Case C-39/03 P)

(2003/C 70/25)

An appeal against the judgment delivered on 26 November
2002 by the Second Chamber, Extended Composition, of the
Court of First Instance of the European Communities in Joined
Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00,
T-137/00 and T-141/00 between Artegodan GmbH, Bruno
Farmaceutici and Others, Schuck GmbH, Laboratorios Roussel
Lda, Laboratoires Roussel Diamant Sàrl, Roussel Iberica SA,
Gerot Pharmazeutika GmbH, Cambridge Healthcare Supplies
Ltd and Laboratoires pharmaceutiques Trenker SA and Com-
mission of the European Communities was brought before the
Court of Justice of the European Communities on 3 February
2003 by the Commission of the European Communities,
represented by R. Wainwright and H. Støvlbæk, assisted by
B. Wägenbauer, with an address for service in Luxembourg.