Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-429/01: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Failure to transpose Directive 90/219/EEC — Genetically modified organisms — Contained use)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, environmental risk prevention, genetically modified organism, microorganism

C 21/4

EN

Official Journal of the European Union

24.1.2004

JUDGMENT OF THE COURT

(Sixth Chamber)

represented by a stave divided into measures and showing, in
particular, a clef, musical notes and rests whose form indicates
the relative value and, where necessary, accidentals.

of 27 November 2003

(1) OJ C 275 of 29.9.2001.

in Case C-283/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Shield Mark BV v Joost
Kist h.o.d.n. Memex (1)

(Trade marks — Approximation of laws — Directive 89/
104/EEC — Article 2 — Signs of which a trade mark may
consist — Signs capable of being represented graphically —
Sound signs — Musical notation — Written description —
Onomatopoeia)

(2004/C 21/07)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-283/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between Shield Mark BV and Joost Kist h.o.d.n. Memex,
on the interpretation of Article 2 of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40,
p. 1), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, J. N. Cunha
Rodrigues,
J.-P. Puissochet, R. Schintgen and F. Macken
(Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-
eral; M.-F. Contet, Principal Administrator, for the Registrar,
has given a judgment on 27 November 2003, in which it has
ruled:

1. Article 2 of First Council Directive 89/104/EEC of 21 Decem-
ber 1988 to approximate the laws of the Member States
relating to trade marks is to be interpreted as meaning that
sound signs must be capable of being regarded as trade marks
provided that they are capable of distinguishing the goods or
services of one undertaking from those of other undertakings
and are capable of being represented graphically.

2. Article 2 of Directive 89/104 must be interpreted as meaning
that a trade mark may consist of a sign which is not in itself
capable of being perceived visually, provided that it can be
represented graphically, particularly by means of images, lines
or characters, and that its representation is clear, precise, self-
contained, easily accessible, intelligible, durable and objective.

In the case of a sound sign, those requirements are not satisfied
when the sign is represented graphically by means of a
description using the written language, such as an indication
that the sign consists of the notes going to make up a musical
work, or the indication that it is the cry of an animal, or by
means of a simple onomatopoeia, without more, or by means
of a sequence of musical notes, without more. On the other
those requirements are satisfied where the sign is
hand,

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 November 2003

in Case C-429/01: Commission of the European Communi-
ties v French Republic (1)

(Failure of a Member State to fulfil obligations — Failure to
transpose Directive 90/219/EEC — Genetically modified
organisms — Contained use)

(2004/C 21/08)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-429/01, Commission of the European Communities
(Agent: G. zur Hausen, assisted by M. van der Woude and
V. Landes) with an address for service in Luxembourg, v French
Republic (Agent: initially by G. de Bergues and D. Colas, then
by G. de Bergues and C. Isidoro), with an address for service in
Luxembourg, APPLICATION for a declaration that, by failing
to transpose correctly and in full Articles 14(a) and (b), 15(1)
and (2), 16(1) and 19(2) to (4) of Council Directive 90/219/
EEC of 23 April 1990 on the contained use of genetically
modified micro-organisms (OJ 1990 L 117, p. 1), as amended
by Commission Directive 94/51/EC of 7 November 1994
adapting to technical progress Directive 90/219 (OJ 1994
L 297, p. 29), and by failing to transpose the provisions of
that directive in respect of certain contained use by the
Ministry of Defence, the French Republic has failed to fulfil its
obligations under that directive and Article 249 EC, the Court
(Sixth Chamber), composed of: V. Skouris, acting for the
President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
F. Macken and N. Colneric (Rapporteur), Judges; F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 27 November 2003, in which it:

1. Declares that, by failing to transpose correctly and in full
Article 14(a) and (b), first subparagraph, third sentence, and
Article 19(2) to (4) of Council Directive 90/219/EEC of
23 April 1990 on the contained use of genetically modified
micro-organisms, as amended by Commission Directive 94/
51/EC of 7 November 1994 adapting to technical progress

24.1.2004

EN

Official Journal of the European Union

C 21/5

Directive 90/219, and by failing to transpose the provisions of
that directive in respect of certain contained use by the Ministry
of Defence, the French Republic has failed to fulfil its obligations
under that directive;

2. Dismisses the remainder of the action;

3. Orders each party to bear its own costs.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 4 December 2003

in Case C-448/01 (Reference for a preliminary ruling from
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v
Republik Österreich, third parties: Stadtwerke Klagenfurt
AG and Kärntner Elektrizitäts-AG (1)

(Directive 93/36/EEC — Public supply contracts — Concept
of the most economically advantageous tender — Award
criterion giving preference to electricity produced from
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —
Possibility of annulment only in the case of material influ-
ence on the outcome of the tender procedure — Illegality of
an award criterion — Obligation to cancel the invitation to
tender)

of the assessment of the most economically advantageous tender
for a contract for the supply of electricity, an award criterion
with a weighting of 45 % which requires that the electricity
supplied be produced from renewable energy sources. The fact
that that criterion does not necessarily serve to achieve the
objective pursued is irrelevant in that regard.

On the other hand, that legislation does preclude such a
criterion where

— It is not accompanied by requirements which permit the
accuracy of the information contained in the tenders to be
effectively verified,

— it requires tenderers to state how much electricity they can
supply from renewable energy sources to a non-defined
group of consumers, and allocates the maximum number
of points to whichever tenderer states the highest amount,
where the supply volume is taken into account only to the
extent that it exceeds the volume of consumption expected
in the context of the procurement.

It is for the national court to determine whether, despite the
contracting authority’s failure to stipulate a specific supply
period, the award criterion was sufficiently clearly formulated to
satisfy the requirements of equal treatment and transparency of
procedures for awarding public contracts.

2.

The Community legislation on public procurement requires the
contracting authority to cancel an invitation to tender if it
transpires in review proceedings under Article 1 of Directive
89/665 that a decision relating to one of the award criteria
laid down by that authority is unlawful and it is therefore
annulled by the review body.

(2004/C 21/09)

(Language of the case: German)

(1) OJ C 84 of 6.4.2002.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on
the interpretation of Article 26 of Council Directive 93/36/
EEC of 14 June 1993 coordinating procedures for the award
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
21 December 1989 on the coordination of the laws, regu-
lations and administrative provisions relating to the application
of review procedures to the award of public supply and public
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 4 December 2003, in which it has ruled:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 November 2003

in Case C-497/01 (Reference for a preliminary ruling from
the Tribunal d’arrondissement de Luxembourg): Zita
Modes Sàrl v Administration de l’enregistrement et des
domaines (1)

(Sixth VAT Directive — Article 5(8) — Transfer of a
totality of assets — Continuation by the transferee in
the same branch of business as the transferor — Legal
authorisation to pursue the activity)

(2004/C 21/10)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

1.

The Community legislation on public procurement does not
preclude a contracting authority from applying, in the context

In Case C-497/01: Reference to the Court under Article 234
EC by the Tribunal d’arrondissement de Luxembourg (Luxem-