Case C-492/06: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 28 November 2006 — Consorzio Elisoccorso San Raffaele v Elilombarda s.r.l.
Date: 2007-01-27
Institutions: Court of Justice
Subjects: appeals by private individuals, award of contract, inter-company cooperation, interpretation of the law, right of action, works contract

27.1.2007

EN

Official Journal of the European Union

C 20/13

The Opposition Division of OHIM (decision of 25 February
2003) and the Board of Appeal (decision of 15 March 2004)
confined their examination to the mark whose registration is
sought (‘Aire Limpio’ No 252.288) and the earlier Community
mark No 91.991. However, the Court of First Instance relied on
documents related to other marks, particularly in relation to
international mark No 328.915 ‘ARBRE MAGIQUE’. As a conse-
quence, the grounds of the judgment under appeal refer to a
mark that even the applicant excluded from the comparative
analysis in order to determine the existence of a likelihood of
confusion. By so doing, the applicant was unable to present its
case properly in respect of
the arguments and information
relating to other marks other than Community trade mark No
91.991, on which is based the error in the judgment under
appeal of the Court of First Instance.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 28 November 2006 — Consorzio
Elisoccorso San Raffaele v Elilombarda s.r.l.

(Case C-492/06)

(2007/C 20/19)

Language of the case: Italian

Referring court

Consiglio di Stato

relating to the application of review procedures to the award of
public supply and public works contracts, as amended by
Council Directive 92/50/EEC (2) of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts, to be interpreted as precluding the possibility under
national law for an individual member of that consortium to
bring an action against the decision awarding the contract?

(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 209, p. 1.

Appeal brought on 30 November 2006 by Commission of
the European Communities against the judgment of the
Court of First Instance (Second Chamber) delivered on 6
September 2006 in Case T-304/04 Commission of the Euro-
pean Communities v Italian Republic, Wam SpA

(Case C-494/06 P)

(2007/C 20/20)

Language of the case: Italian

Parties

Appellant: Commission of the European Communities (repre-
sented by: V. Di Bucci and E. Righini, Agents)

Other parties to the proceedings: Italian Republic, Wam SpA

Parties to the main proceedings

Forms of order sought

Applicant: Consorzio Elisoccorso San Raffaele

Defendant: Elilombarda s.r.l.

Question referred

Where a consortium without legal personality has participated
as such in a procedure for the award of a public contract and
has not been awarded that contract,
is Article 1 of Council
Directive 89/665/EEC (1) of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions

— Set aside the judgment of the Court of First Instance of the
European Communities of 6 September 2006 in Joined
Cases T-304/04 and T-316/04 Italian Republic and Wam SpA
v Commission of the European Communities and, in so doing,

— give a final ruling on the dispute and dismiss the action as

unfounded;

— in the alternative, refer the case back to the Court of First

Instance for a new ruling;

— order the Italian Republic and Wam SpA to pay the costs of
the proceedings, together with the costs of the proceedings
at first instance.