Case C-35/03: Action brought on 31 January 2003 by the Commission of the European Communities against Ireland
Date: 2003-03-22
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, framework agreement, national implementing measure, professional association, temporary employment

22.3.2003

EN

Official Journal of the European Union

C 70/13

Since the abovementioned amounts, overpaid by the Com-
mission, have not been repaid, the defendant failed to fulfil its
obligations under the contract.

Reference for a preliminary ruling by the Conseil d’Etat,
Section d’Administration by judgment of that Court of
27 December 2002 in the case of La Société Anonyme
Fabricom against l’Etat Belge

(Case C-34/03)

(2003/C 70/21)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Conseil d’Etat,
Section d’Administration (Council of State, Administrative
Section) of 27 December 2002, received at the Court Registry
on 29 January 2003, for a preliminary ruling in the case of La
Société Anonyme Fabricom against l’Etat Belge (the Belgian
State) on the following questions:

3.

ed as covering only private undertakings or undertakings
which had supplied gratuitous services?

Can Council Directive 89/665/EEC (5) of 21 December
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, and in particular Articles 2(1)(a)
and 5 thereof, be interpreted as meaning that a con-
tracting authority may exclude, up to the end of the
process of evaluation of the tenders, from participation in
the procedure or submission of a tender, an undertaking
connected to any person who has been responsible for
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 209 of 24.07.1992, p. 1.
(2) OJ L 199 of 09.08.1993, p. 1.
(3) OJ L 199 of 09.08.1993, p. 54.
(4) OJ L 328 of 28.11.1997, p. 1.
(5) OJ L 395 of 30.12.1989, p. 33.

the European Parliament and of

1. Do Council Directive 92/50/EEC of 18 June 1992 relating
to the coordination of procedures for the award of public
service contracts (1), and in particular Article 3(2) thereof,
Council Directive 93/36/EC of 14 June 1993 coordinating
procedures for the award of public supply contracts (2),
and in particular Article 5(7) thereof, Council Directive
93/37/EEC of 14 June 1993 concerning the coordination
of procedures for the award of public works contracts (3),
in particular Article 6(6) thereof, and Directive 97/52/EC
of
the Council of
13 October 1997 amending Directives 92/50/EEC, 93/
36/EEC and 93/37/EEC concerning procedures for the
award of public service contracts, public supply contracts
and public works contracts (4), in particular Articles 2(1(b)
and 3(1)(b) thereof, in conjunction with the principle of
trade and industry and
proportionality,
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
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?

freedom of

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-

Action brought on 31 January 2003 by the Commission
of the European Communities against Ireland

(Case C-35/03)

(2003/C 70/22)

An action against Ireland was brought before the Court of
Justice of the European Communities on 31 January 2003 by
the Commission of the European Communities, represented
by N. Yerrell, acting as agent, with an address for service in
Luxembourg.

The Applicant claims that the Court should:

a)

find that Ireland has failed in its obligations under the EC
Treaty by failing to adopt the laws, regulations and
administrative provisions necessary to comply with
Council Directive 1999/70/EC of 28 June 1999 concern-
ing the framework agreement on fixed-term work con-
cluded by ETUC, UNICE and CEEP (1), or by failing to
ensure that management and labour have introduced the
necessary measures by agreement, and/or by failing to
inform the Commission thereof;

b)

condemn Ireland to bear the costs of the procedure.

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.