Case C-529/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH
Date: 2007-11-28
Institutions: Court of Justice
Subjects: EU trade mark, competition law, confectionery product, interpretation of the law, trade-mark law

9.2.2008

EN

Official Journal of the European Union

C 37/13

Form of order sought

— declare, by varying the decision of

the unlawful

the Court of First
Instance delivered on 12 September 2007 in Case T-250/04,
that there is damage to the profession and health of the
applicant as a result of
rejection of his
application to take part in the competition for appointment
to the post of Head of Delegation in Colombia; determine
the non-material damage in a different manner, and conse-
quently assess the compensation payable in accordance
therewith; accordingly, uphold the form of order already
sought
instance, which read:
‘recognise that Mr Combescot has suffered damage to his
image and professional reputation, and that the illegal deci-
sion excluding him from the competition has had serious
adverse effects on the balance of his mind; and award him
the sum of EUR 100 000,00 as compensation for damage’;

in the proceedings at

first

— order the Commission to pay the costs.

Pleas in law and main arguments

It contests the conclusions reached by the Court in relation to
the absence of actual damage to professional life, pointing out,
moreover,
information relating to the selection criteria
applied by the Commission to appoint the Head of Delegation
in Colombia was never communicated to the applicant, despite
his having requested it.

that

effect of

the unlawful

conduct on the

As regards compensation for physical damage, the evidence of
the
state of
Mr Combescot's health derives from the temporal link between
the same. The exclusion from the competition is, furthermore,
the most recent in a series of harassment on the part of the
in determining the
Commission towards the official. Finally,
non-material damage, the applicant requests a proportionate
assessment of the same on the basis of the principles of fairness
in the determination of damage, which takes account of the
harmful consequences in terms not only of anxiety and stress,
but also of hardship suffered by the official following his exclu-
sion from the competition.

Philippe Combescot, an official, has brought an appeal against
the decision of the Court of First Instance of the European
Communities (Second Chamber) delivered on 12 January 2007
in Case T-250/04, the other party to the proceedings being the
Commission of the European Communities.

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria) lodged on 28 November 2007 —
Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth
GmbH

The appeal concerns the exclusion of Philippe Combescot,
then the Advisor
from competition
COM/091/03 for appointment to the post of Head of Delega-
tion in Colombia (‘the exclusion decision’).

in Guatemala,

resident

The Court held that that decision was unlawful and, therefore,
that the application for damages brought by the applicant was
justified, but it excluded the heads of damage relating to profes-
sional life and health, and merely recognised unspecified non-
material damage in respect of which the sum of EUR 3 000 000
was paid to the applicant.

By the present appeal, counsel for the applicant ask the Court
to reverse the decision of the Court of First Instance of the
European Communities in so far as it excludes damage to
professional life and health and therefore quantifies damages on
the basis only of
the non-material damage complained of;
accordingly, it asks the Court to state that the official, following
his unlawful exclusion from the competition, has suffered
obvious damage to his career as well as his professional image,
that, however, the exclusion decision has caused suffering and
mental anguish which in turn has caused a severe state of
depression, as substantiated in the case-file and, above all, veri-
fied by the institution's own experts. The applicant therefore
asks the Court to make an overall assessment of the factual
circumstances surrounding the matter, considering them all to
be relevant for the purposes of appraising, even only on the
grounds of fairness, the non-material damage in a much higher
sum, directly proportional also to the career prospects lost by
the official as a result of the exclusion decision and the foresee-
able serious consequences caused by the same.

The applicant therefore maintains the application for damages
as specified in the form of order sought in the application in the
present proceedings.

(Case C-529/07)

(2008/C 37/17)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Chocoladefabriken Lindt & Sprüngli AG

Defendant: Franz Hauswirth GmbH

Questions referred

1. Is Article 51(1)(b) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark (1) to be
interpreted as meaning that an applicant for a Community
trade mark is to be regarded as acting in bad faith where he
knows, at the time of his application, that a competitor in (at
least) one Member State is using the same sign, or one so
similar as to be capable of being confused with it, for the
same or similar goods or services, and he applies for the
trade mark in order to be able to prevent that competitor
from continuing to use the sign?

C 37/14

EN

Official Journal of the European Union

9.2.2008

2. If the first question is answered in the negative:

Is the applicant to be regarded as acting in bad faith if he
applies for the trade mark in order to be able to prevent a
competitor from continuing to use the sign, where, at the
time he files his application, he knows or ought to know
that by using an identical or similar sign for the same goods
or services, or goods or services which are so similar as to be
the competitor has already
capable of being confused,
acquired ‘valuable property rights’?

Santa Cita, Vila Nova de Gaia/Douro Nordeste, Vila Real
de Santo António, Viana do Castelo-Cidade, Vila Franca
de Xira and Vila Real, as provided for by Article 4 of
that directive,

the Portuguese Republic has failed to fulfil
its obligations
under Council Directive 91/271/EEC of 21 May 1991
concerning urban waste-water treatment;

— order the Portuguese Republic to pay the costs.

3. If either the first or the second question is answered in the

affirmative:

Pleas in law and main arguments

Is bad faith excluded if
the applicant's sign has already
obtained a reputation with the public and is therefore
protected under competition law?

(1) OJ 1994 L 11, p. 1.

Action brought on 29 November 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-530/07)

(2008/C 37/18)

Language of the case: Portuguese

The Member States were to ensure, at the latest by 31 December
2000, that all agglomerations with a population equivalent (p.e.)
of more than 15 000 and, at the latest by 31 December 2005,
that all agglomerations with a p.e. of between 2 000 and
15 000 were provided with collecting systems for urban waste
water.

Article 4 of the Directive provides as follows:

‘1. Member States shall ensure that urban waste water
entering collecting systems shall before discharge be subject
to secondary treatment or an equivalent
treatment as
follows:

— at the latest by 31 December 2000 for all discharges

from agglomerations of more than 15 000 p.e.,

— at

the latest by 31 December 2005 for all dis-
charges from agglomerations of between 10 000 and
15 000 p.e.,

— at the latest by 31 December 2005 for discharges to
from agglomerations of

fresh water and estuaries
between 2 000 and 10 000 p.e.

Parties

Applicant: Commission of the European Communities (repre-
sented by S. Pardo Quintillán and G. Braga da Cruz, acting as
Agents)

…’

(1) OJ L 135, p. 40.

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing

(a) to provide the agglomerations of Angra do Heroismo,
Bacia do Rio Uima (Fiães de S. Jorge), Costa de Aveiro,
Covilhã, Espinho/Feira, Fátima, Ponta delgada, Ponte de
Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila
Real de Santo António, Viana do Castelo-Cidade and
Vila Real with collecting systems, as provided for by
Article 3 of Council Directive 91/271/EEC (1) of 21 May
1991 concerning urban waste-water treatment, and

(b) to subject to secondary treatment or an equivalent treat-
ment urban waste water from the agglomerations of
Alta Nabão, Alverca, Bacia do Rio Uima (Fiães de S.
Jorge), Carvoeiro, Costa da Caparica/Trafaria, Costa de
Aveiro, Costa Oeste, Covilhã, Espinho/Feira, Fátima,
Fundão/Alçaria, Lisbon, Matosinhos, Milfontes, Moledo/
Âncora/Afife, Nazaré/Famalicâo, Pedrógão Grande, Ponta
delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde,

Reference for a preliminary ruling from the Obersten
Gerichtshof (Austria) lodged on 29 November 2007 —
Fachverband der Buch- und Medienwirtschaft v LIBRO
Handelsgesellschaft mbH

(Case C-531/07)

(2008/C 37/19)

Language of the case: German

Referring court

Obersten Gerichtshof