Case C-26/03: Reference for a preliminary ruling by the Oberlandesgericht Naumburg by order of that Court of 8 January 2003 in the procurement review proceedings, Parties to the proceedings being 1. The City of Halle, 2. RPL Recyclingpark Lochau GmbH and 3. The Thermische Restabfall- und Energieverwertungsanlage TREA Leuna consortium
Date: 2003-04-26
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, provision of services, public contract, single market, works contract

26.4.2003

EN

Official Journal of the European Union

C 101/15

b) Under

the Community law principle of pro-
portionality,
is the discretion to be exercised in
assessing the impact of overlaying waste that has
not been treated prior to landfill with waste treated
by thermal or mechanical and biological processes
prior to landfill wide or narrow? Does the principle
of proportionality permit hazards caused by waste
treated prior to landfill by mechanical processes
alone to be offset by other safeguards?

( 1) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of

26 April 1999 on the landfill of waste).

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 18 December 2002, in the case of
Société de produits Nestlé SA against Unilever plc

(Case C-7/03)

(2003/C 101/26)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 18 Decem-
ber 2002, which was received at the Court Registry on
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:

1. When considering signs which consist of the shape of
goods, what
the goods
is meant by ‘the nature of
themselves’ in Art 3(1)(e) of the Trade Marks Directive
89/104 (1)? and in particular does that nature arise from:

(a)

(b)

the specification of goods for which the trade mark
is registered (or applied for);

the kind of goods for which the mark is used
regarded as articles of commerce;

I.

(c) only the inherent nature of non-man made articles;

or

(d)

the shape of the goods which makes the product
different in appearance from similar competitive
products;

(e)

something else, and if so what?

2. Where the shape of a product which has been on the
market is merely shown to be recognised by a substantial
proportion of the relevant public as denoting the goods

of a particular trader is that sufficient of itself to prove
that the shape has acquired a distinctive character within
the meaning of Art 3(3) of the Directive?

3.

4.

If that is insufficient, must it also be proved that the shape
is used and relied upon by the relevant public as a
guarantee of trade origin?

If the preponderance of the public recognise a shape
mark as the product of one trader but a significant
minority also regard other shapes in use by other traders
as the shape applied for, has the shape mark acquired a
‘distinctive character’ within the meaning of Art 3(3) of
the Directive?

(1) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ L 40 11.2.1989, p. 1).

Reference for a preliminary ruling by the Oberlandesge-
richt Naumburg by order of that Court of 8 January 2003
in the procurement review proceedings, Parties to the
proceedings being 1. The City of Halle, 2. RPL Recy-
clingpark Lochau GmbH and 3. The Thermische
Restabfall- und Energieverwertungsanlage TREA Leuna
consortium

(Case C-26/03)

(2003/C 101/27)

Reference has been made to the Court of
Justice of the
European Communities by order of the Oberlandesgericht
Naumburg (Higher Regional Court, Naumburg) of 8 January
2003, received at the Court Registry on 23 January 2003, for
a preliminary ruling in the procurement review proceedings,
Parties to the proceedings being 1. The City of Halle, 2. RPL
Recyclingpark Lochau GmbH and 3. The Thermische
Restabfall- und Energieverwertungsanlage TREA Leuna consor-
tium, on the following questions:

1. Does the first sentence of Article 1(1) of Council
Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and adminis-
trative provisions relating to the application of
review procedures to the award of public supply and
public works contracts (1), as replaced by Article 41
of Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the
award of public service contracts (2), require Member
States to ensure that a decision taken by a con-
tracting authority to award a public contract other-
wise than by means of a procedure which complies
with the directives relating to the award of public
contracts may be reviewed effectively and as rapidly
as possible?

C 101/16

EN

Official Journal of the European Union

26.4.2003

2. Does the first sentence of Article 1(1) of Directive
89/665 require Member States to ensure that
decisions of contracting authorities made prior to
the issue of a formal invitation to tender, in particu-
lar the decision of the preliminary questions as to
whether a particular procurement process falls
within the personal or material scope of application
of the directives relating to the award of public
contracts or, by way of exception, is outside the
scope of procurement law, may be reviewed effec-
tively and as rapidly as possible?

3.

If question I.1 is answered in the affirmative and
question I.2 is answered in the negative:
is the
obligation of a Member State to ensure that a
decision taken by a contracting authority to award a
public contract otherwise than by means of a
procedure which complies with the directives relat-
ing to the award of public contracts may be reviewed
effectively and as rapidly as possible satisfied where
review procedures cannot be raised until a specified,
formal stage in the procurement has been reached,
for example the commencement of oral or written
negotiations with a third party?

II.

1. Where a contracting authority such as a regional or
local authority plans to conclude in writing, with
an entity which is formally distinct from it (‘the
contracting partner’), a service contract for pecuniary
interest which would fall within Directive 92/50
relating to the coordination of procedures for the
award of public service contracts, but, by way of
exception, the contract would not be a public service
contract for the purposes of Article 1(a) of Directive
92/50, as amended by the 1994 Acts of Accession (3)
and European Parliament and Council Directive 97/
52/EC (4),
the contracting partner were to be
deemed to be part of the public administration or,
as the case may be, of the contracting authority’s
self-supply’),
(‘procurement-exempt
undertaking
does the mere fact that a private undertaking is a
shareholder in the contracting partner always pre-
clude the classification of such a contract as a
procurement-exempt self-supply?

if

2.

If question II.1 is answered in the negative: what are
the criteria for determining whether a contracting
partner whose shareholders include a private person
(‘semi-public company’) is to be deemed to be part
of the public administration or, as the case may be, of
the contracting authority’s undertaking? Specifically:

2.1. Is a semi-public company to be deemed to be
part of the contracting authority’s undertaking
in terms of structure and degree of control
where the contracting authority ‘controls’
it,
for example within the meaning of Article 1(2)
and Article 13(1) of 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 (5), as amended by the
1994 Acts of Accession (6) and by Directive
98/4/EC of the European Parliament and of
the Council of 16 February 1998 amending
Directive 93/38/EEC coordinating the procure-
ment procedures of entities operating in the
water, energy,
transport and telecommuni-
cations sectors (7)?

2.2. Does any influence the private co-shareholder
in the semi-public company is entitled in law
to exert over the contracting partner’s strategic
objectives and/or individual decisions relating
to the management of its undertaking preclude
attributing the semi-public company to the
contracting authority’s undertaking?

2.3. Is a semi-public company to be deemed to be
part of the contracting authority’s undertaking
in terms of structure and degree of control
where, so far as the procurement process
in question is concerned,
the latter has a
comprehensive right of direction in respect
only of decisions relating to concluding the
contract and supplying the services under it?

2.4. Is a semi-public company to be deemed to be
part of the contracting authority’s undertaking
in terms of carrying out the essential part of its
activities together with the contracting auth-
ority where at least 80 % of the undertaking’s
average turnover within the Community during
the past three years in the services sector has
derived from the supply of services to the
contracting authority or undertakings affiliated
to or forming part of the contracting authority
(or, where the mixed undertaking has been in
operation for less than three years, it is expected
that it will satisfy this 80 % rule)?

(1) OJ L 395 of 30.12.1989, p. 33.
(2) OJ L 209 of 24.07.1992, p. 1.
(3) OJ C 241 of 29.8.1994, p. 233.
(4) OJ L 328 of 13.10.1997, p. 1.
(5) OJ L 199 of 9.8.1993, p. 84.
(6) OJ C 241 of 29.8.1994, p. 228.
(7) OJ L 101 of 16.2.1998, p. 1.