Case C-233/04: Reference for a preliminary ruling by the Arbeitsgericht Düsseldorf by order of that court of 5 May 2004 in the case of Ms Gül Demir against Securicor Aviation Limited, Securicor Aviation (Germany) Limited and Kötter Security GmbH & Co. KG.
Date: 2004-08-07
Institutions: Court of Justice
Subjects: air transport, award of contract, branch of activity, financial management, intermediate goods, interpretation of the law, transfer of businesses

7.8.2004

EN

Official Journal of the European Union

C 201/11

5. In light of Article 59 of the Vienna convention on the law
of the Treaties,
is the TRIPS agreement on trade-related
aspects of intellectual property rights (OJ 1994 L 336),
the World
which was concluded within the context of
Trade Organisation and entered into force on 1 January
1996, thus after the Community Agreement of 1993 (OJ
1994 L 337) entered into force,
to be interpreted as
meaning that its provisions governing homonyms in vine
names apply in place of those of the Community Agree-
ment of 1993 where there is inconsistency between the
two, given that the parties to both agreements are the
same?

6. In the case of two names that are homonyms and refer to
two different wines produced in two different countries
both party to the TRIPS Agreement (and both where the
homonym relates to two geographical names used in both
the countries party to TRIPS and where it relates to a
geographical name in one country and the like name relates
to a vine traditionally cultivated in another country party to
TRIPS), must Articles 22 to 24 of the Third Part of Annex
C to the Treaty Establishing the World Trade Organisation,
which contains the TRIPS Agreement (OJ 1994 L 336),
which entered into force on 1 January 1996, be interpreted
as meaning that both the names may continue to be used
provided that they have been used in the past by the respec-
tive producers either in good faith or for at least 10 years
prior to 15 April 1994 (Article 24(4)) and each name
clearly indicates the country or region or area of the origin
of the wine to which it refers in such a way as not to
mislead consumers?’

Reference for a preliminary ruling by the Arbeitsgericht
Düsseldorf by order of that court of 5 May 2004 in the
case of Ms Gül Demir against Securicor Aviation Limited,
Securicor Aviation (Germany) Limited and Kötter Security
GmbH & Co. KG.

Limited, Securicor Aviation (Germany) Limited and Kötter
Security GmbH & Co. KG, on the following question:

1. In examining whether there is — irrespective of the ques-
tion of ownership — a transfer of a business within the
meaning of Article 1 of Directive 2001/23/EC (1)
in the
context of a fresh award of a contract, does the transfer of
the assets from the original contractor to the new contractor
— having regard to all the facts — presuppose their transfer
for independent commercial use by the transferee? By exten-
sion, is conferment on the contractor of a right to determine
the manner in which the assets are to be used in its own
commercial interest the essential criterion for a transfer of
assets? On that basis, is it necessary to determine the opera-
tional significance of the contracting authority's assets for
the service provided by the contractor?

2. If the Court answers Question 1 in the affirmative:

(a) Is it precluded to classify assets as being for independent
commercial use if
they are made available to the
contractor by the contracting authority solely for their
use and responsibility for maintaining those assets,
including
the
contracting authority?

associated costs,

is borne by

the

(b) Is there independent commercial use by the contractor
when, for the purpose of conducting airport security
checks, it uses the walk-through metal detectors, hand-
held metal detectors and X-ray equipment supplied by
the contracting authority?

(1) OJ L 82, 22.3.2001, p. 16.

Action brought on 4 June 2004 by the Commission of the
European Communities against the Kingdom of Spain

(Case C-233/04)

(2004/C 201/20)

(Case C-235/04)

(2004/C 201/21)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Arbeitsgericht Düsseldorf
(Labour Court, Düsseldorf) (Germany) of 5 May 2004, received
at the Court Registry on 3 June 2004, for a preliminary ruling
in the case of Ms Gül Demir against Securicor Aviation

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 4 June
2004 by the Commission of the European Communities, repre-
sented by D.M. van Beek and Gregorio Valero Jordana, acting
as Agents, with an address for service in Luxembourg.