Case C-260/04: Action brought on 17 June 2004 by the Commission of the European Communities against the Italian Republic
Date: 2004-08-28
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, administrative transparency, animal show, equidae, freedom to provide services, game of chance, restriction on competition, service concession

C 217/14

EN

Official Journal of the European Union

28.8.2004

ARTICLE 3.1 (g) OF COUNCIL DIRECTIVE 89/104 (1)

under Article 12.2 (b) and, in particular, is it relevant that
the risk of deception is likely to diminish over time?

1. Is a trade mark of such a nature as to deceive the public
and prohibited from registration under Article 3.1 (g) in the
following circumstances:

(a) the goodwill associated with the trade mark has been
assigned together with the business of making the goods
to which the mark relates;

(b) prior to the assignment the trade mark indicated to a
significant proportion of the relevant public that a par-
ticular person was involved in the design or creation of
the goods in relation to which it was used;

(c) after the assignment an application was made by the

assignee to register the trade mark; and

(d) at the time of the application a significant portion of
the relevant public wrongly believed that use of the
trade mark indicated that the particular person was still
involved in the design or creation of the goods in rela-
tion to which the mark was used, and this belief was
likely to affect the purchasing behaviour of that part of
the public?

2. If the answer to question 1 is not unreservedly yes, what
other matters must be taken into consideration in assessing
whether a trade mark is of such a nature as to deceive the
public and prohibited from registration under Article 3.1 (g)
and, in particular, is it relevant that the risk of deception is
likely to diminish over time?

ARTICLE 12.2 (b) OF COUNCIL DIRECTIVE 89/104

3. Is a registered trade mark liable to mislead the public in
consequence of the use made of it by the proprietor or with
his consent and so liable to revocation under Article 12.2
(b) in the following circumstances:

(a) the registered trade mark and the goodwill associated
with it have been assigned together with the business of
making the goods to which the mark relates;

(b) prior to the assignment the trade mark indicated to a
significant proportion of the relevant public that a par-
ticular person was involved in the design or creation of
the goods in relation to which it was used;

(c) after the assignment an application was made to revoke

the registered trade mark; and

(d) at the time of the application a significant portion of
the relevant public wrongly believed that use of the
trade mark indicated that the particular person was still
involved with the design or creation of the goods in
relation to which the mark was used, and this belief was
likely to affect the purchasing behaviour of that part of
the public?

(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. 1-7.

Action brought on 17 June 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-260/04)

(2004/C 217/27)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 17 June
2004 by the Commission of the European Communities, repre-
sented by K. Wiedner, C. Cattabriga and L. Visaggio, acting as
Agents.

The applicant claims that the Court should:

— declare that, the Ministry of Finance having renewed 329
licences for the taking of bets on horse races without a
prior competitive tendering procedure, the Italian Republic
has infringed the general principle of transparency and the
obligation to advertise which follow from the provisions of
the EC Treaty on the freedom of establishment in Article
43 et seq. and the freedom to provide services in Article 49
et seq.;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments:

Although licences for the services of collection and acceptance
of bets on horse races do not come within the scope of
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (1), it is however clear from Case C-324/98 Telaus-
tria (2) that the national authorities which award such licences
are, none the less, bound to comply with the fundamental rules
of the Treaty and, in particular, the principle of non-discrimina-
tion on the ground of nationality implied in the provisions of
the EC Treaty concerning the freedom of establishment and the
freedom to provide services (Article 43 et seq. and Article 49 et
seq. respectively).

The same principles apply both to the award of licences and to
their extension and renewal. In Community law extension or
to the award of a new
renewal of a licence is equivalent
licence, which must therefore comply with that law.

4. If the answer to question 3 is not unreservedly yes, what
other matters must be taken into consideration in assessing
whether a registered trade mark is liable to mislead the
public in consequence of
it by the
proprietor or with his consent and so liable to revocation

the use made of

The Court made it clear in Case C-275/98 Unitron Scandinavia
and 3-S (3) that
the principle of non-discrimination on the
ground of nationality ‘implies, in particular, an obligation of
transparency in order to enable the contracting authority to
satisfy itself that it has been complied with.’

28.8.2004

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Official Journal of the European Union

C 217/15

That obligation of
transparency which is imposed on the
contracting authority consists in ensuring, for the benefit of
any potential tenderer, a degree of advertising sufficient to
enable the services market to be opened to competition and
the impartiality of procurement procedures to be reviewed.

own resources, whose aim is identical to Article 10 of the
EC Treaty.

2. Order the Kingdom of Belgium to pay the costs.

In the Commission's opinion, it is wholly clear that the prin-
ciple of transparency referred to above was not observed by the
Italian authorities at the time of renewal of the aforementioned
329 licences for the collection and acceptance of bets on horse
races to 1 January 2006 in favour of the incumbent holders
outside a competitive tendering procedure.

(1) OJ L 209 of 24.7.1992, p. 1
(2) [2000] ECR I-10745
(3) [1999] ECR I-8291, paragraph 31

Action brought on 29 June 2004 against the Kingdom of
Belgium by the Commission of the European Commu-
nities

(Case C-275/04)

(2004/C 217/28)

An action was brought before the Court of Justice of the Euro-
pean Communities on 29 June 2004 by the Commission of the
European Communities, represented by C. Giolito and G.
Wilms, acting as Agents, with an address for service in Luxem-
bourg, against the Kingdom of Belgium.

The Commission claims that the Court should:

1. Declare that:

— by failing to enter in the accounts referred to in Article
6(3)(a) of Regulation No 1150/2000 (1) the entitlements
established within the prescribed periods;

and

— by failing to check whether since 1 January 1995 other
delays in making own resources available occurred
following a late entry in the accounts referred to in
Article 6(3)(a) of Regulation No 1150/2000, by
destroying the records covering that period and by
failing to communicate them to the Commission in
order to enable it to calculate the overdue interest owing
pursuant to Article 11 of Regulation No 1552/89 (2) due
to a delay in making own resources available;

Pleas in law and principal arguments:

The Kingdom of Belgium's disregard of the Community provi-
sions governing accounting entries has given rise to delays in
making own resources available. Member States are required to
enter the amounts of established, guaranteed and uncontested
entitlements in the accounts referred to in Article 6(3)(a) of
Regulation No 1150/2000 (‘A Accounts’), whereas the accounts
referred to in Article 6(3)(b) (‘B Accounts’) are reserved exclu-
sively for established entitlements which have not yet been
collected and for which no security has been provided. The
amounts covered by a guarantee issued under the external
transit system procedure (T1, TIR carnets, ATA carnets, etc.)
may be entered in the separate accounts only if they have been
duly contested, which implies inter alia that time-limits have
been complied with and the action has been commenced in
writing.

The Commission cannot accept the justifications put forward
by Belgium in support of the anomalies and delayed entries.

(1) Council Regulation (EC, Euratom) No 1150/2000 of 22.05.2000
implementing Decision 94/728/EC, Euratom on the system of the
Communities' own resources (OJ 2000 L 130, p. 1).

(2) Council Regulation (EEC, Euratom) No 1552/89 of 29.05.1989
implementing Decision 88/376/EEC, Euratom on the system of the
Communities' own resources (OJ 1989 L 155, p. 1).

(3) OJ 2000 L 293, p. 9.

Action brought on 30 June 2004 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-282/04)

(2004/C 217/29)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
30 June 2004 by the Commission of the European Commu-
nities, represented by Hans Støvlbæk and Albert Nijenhuis,
acting as Agents.

The applicant claims that the Court should:

the Kingdom of Belgium has failed to fulfil its obligations
under Articles 6(3), 9, 10 and 11 of Council Regulation (EC,
Euratom) No 1150/2000 of 22 May 2000 implementing
Decision 94/728/EC, Euratom on the system of the Commu-
nities' own resources (3), which, as from 31 May 2000,
repealed and replaced Council Regulation (EEC, Euratom)
No 1552/89 of 29 May 1989 implementing Decision
88/376/EEC, Euratom on the system of the Communities'

— declare that by retaining certain provisions

from the
statutes of the firm Koninklijke KPN NV, namely that the
shares of the firm contain a special named share which is
owned by the Netherlands State and to which special rights
are attached with regard to the approval of certain decisions
taken by the authorised organs of the firm, the Kingdom of
the Netherlands has failed to fulfil
its obligations under
Articles 56 and 43 EC;