Case C-91/08: Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 28 February 2008 — Wall AG v Stadt Frankfurt am Main, Frankfurter Entsorgungs- und Service GmbH (FES)
Date: 2008-02-28
Institutions: Court of Justice
Subjects: administrative transparency, award of contract, competition law, discrimination on the basis of nationality, equal treatment, interpretation of the law

7.6.2008

EN

Official Journal of the European Union

C 142/11

— An order that OHIM pay the costs of proceedings.

sions of Article 43 of Regulation No 40/94 and the second
sentence of Rule 22(2) of Regulation No 2868/95.

Upholding the claims made at first instance:

— Annulment of the decision of the First Board of Appeal of

OHIM of 7 December 2004, R 0328/2004-1 in full;

— An order that OHIM pay the costs.

Pleas in law and main arguments

The Court of First Instance dismissed the application of the
appellant against the decision of the First Board of Appeal of
OHIM on the ground that the Opposition Division of the Office
correctly applied the second sentence of Rule 71(1) of Regu-
lation No 2868/95 when it refused the appellant's application
for an extension of the period specified for submission of proof
of use of the earlier marks in the opposition proceedings, and
that the Office had no discretion as regards the consideration of
the evidence submitted late by the appellant in the present case.

The appeal alleges the following breaches of Community law by
the Court.

(1) The Court of First

the period specified.

infringed the second
Instance has
sentence of Rule 71(1) of Regulation No 2868/95 by misin-
terpreting that provision. In particular, the Court of First
Instance failed to have regard for the fact that Regulation
No 40/94 contains no rules on possible grounds for an
It also failed to have
extension of
regard for the fact that, at the material time, Rule 71(1) of
Regulation No 2868/95 had not been further defined by
guidelines for oppositions or other instructions from OHIM,
the permissible
so that no possible interpretations of
grounds for extensions of the period were available. The
Court therefore did not consider fully the facts of the case
and/or misinterpreted the second sentence of Rule 71(1).

Reference for a preliminary ruling from the Landgericht
Frankfurt am Main (Germany) lodged on 28 February 2008
— Wall AG v Stadt Frankfurt am Main, Frankfurter
Entsorgungs- und Service GmbH (FES)

(Case C-91/08)

(2008/C 142/17)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Wall AG

Defendants: Stadt Frankfurt am Main, Frankfurter Entsorgungs-
und Service GmbH (FES)

Other party to the proceedings: DSM Deutsche Städte Medien
GmbH

(2) The Court of First Instance also disregarded the duty to state
reasons incumbent on it, as it did not investigate the state-
ment of the appellant that at the time of the application for
an extension there were no legal rules and no basis for inter-
the wording of requests for extensions. As
pretation of
reasons were attached to the request for an extension, the
Court should also have explained the legal basis on which
the reasons stated for the request for an extension are to be
regarded as insufficient.

(3) The Court of First Instance infringed Article 74(2) of Regu-
lation No 40/94 by misinterpreting that provision as
meaning that OHIM had no discretion to take account of
evidence adduced late in the opposition proceedings.
It
failed to have regard to the fact that the Boards of Appeal
have a general discretion which is not excluded by the provi-

Questions referred

1. Are the principle of equal treatment expressed inter alia in
Articles 12 EC, 43 EC and 49 EC and the prohibition in
Community law of discrimination on grounds of nationality
to be interpreted as meaning that the consequent duties of
transparency for public authorities, namely to use an appro-
priate degree of advertising to enable the award of service
concessions to be opened up to competition and the imparti-
ality of the procurement procedure to be reviewed (see the
judgments of
Justice in Case C-324/98
Telaustria, paragraphs 60 to 62; Case C-231/03 Coname, para-
graphs 17 to 22; Case C-458/03 Parking Brixen, paragraphs
46 to 50; Case C-410/04 ANAV, paragraph 21; and
C-260/04 Commission v Italy, paragraph 24), require national
law to provide an unsuccessful tenderer with a claim to an
order restraining an imminent breach of those duties and/or
prohibiting the continuation of such a breach of duty?

the Court of

C 142/12

EN

Official Journal of the European Union

7.6.2008

2. If Question 1 is answered in the negative: Do those duties of
the
the customary law of
transparency form part of
European Communities,
in the sense that they are already
applied continually and constantly, equally and generally, and
are recognised as a binding rule by those concerned?

Reference for a preliminary ruling from the Pest Megyei
Bíróság (Magyar Köztársaság) lodged on 3 March 2008 —
CIBA Speciality Chemicals Central and Eastern Europe
Szolgáltátó, Tanácsadó és Keresdedelmi Kft. v Adó- és
Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály

3. Do the duties of

transparency mentioned in Question 1
require,
in the case also of an intended amendment to a
service concession contract — including the substitution of a
subcontractor who was mentioned as part of the tender —
that the negotiations on this are again opened up to compe-
tition with an appropriate degree of advertising, or what
would be the criteria for requiring such an opening up?

4. Are the principles and duties of transparency mentioned in
Question 1 to be interpreted as meaning that in the case of
service concessions,
in the event of a breach of duty, a
contract concluded as a result of the breach and intended to
create or amend a continuing obligation must be terminated?

5. Are the principles and duties of transparency mentioned in
Question 1 and Article 86(1) EC, referring also if necessary
to Article 2(1)(b) and (2) of
the Transparency Directive
80/723/EEC (1) and Article 1(9) of the Procurement Coordi-
nation Directive 2004/18/EC (2),
interpreted as
meaning that an undertaking is subject to those duties of
transparency,
contracting
authority, if

a public undertaking or

to be

as

— it was set up by a regional or local authority for the
purpose of waste disposal and street cleaning but also
operates in the free market,

— it belongs to that regional or local authority to the extent
of a 51 % holding, but decisions of shareholders can be
taken only by a three-quarters majority,

— the regional or local authority appoints only a quarter of
the under-

the supervisory board of

the members of
taking, including the chairman, and

(Case C-96/08)

(2008/C 142/18)

Language of the case: Hungarian

Referring court

Pest Megyei Bíróság

Parties to the main proceedings

Applicants: CIBA Speciality Chemicals Central and Eastern
Europe Szolgáltátó, Tanácsadó és Keresdedelmi Kft.

Defendant: Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosz-
tály

Question referred

Can the principle of freedom of establishment under Articles 43
and 48 EC be interpreted as precluding a legal rule under which
a trading company established in Hungary must pay a voca-
tional training levy if it employs workers in a branch abroad
and meets its tax and social security obligations with regard to
such workers in the State where the branch is situated?

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 5 March 2008 — SALIX
Grundstücks-Vermietungsgesellschaft mbH & Co. Objekt
Offenbach KG v Finanzamt Düsseldorf-Süd

— it achieves more than half

its turnover from bilateral
contracts for waste disposal and street cleaning in the
territory of that regional or local authority, which reim-
burses itself by means of municipal taxes on its resi-
dents?

(Case C-102/08)

(2008/C 142/19)

Language of the case: German

(1) Commission Directive 80/723/EEC of 25 June 1980 on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 1980 L 195, p. 35); Commission Directive 2000/52/EC
of 26 July 2000 amending Directive 80/723/EEC on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 2000 L 193, p. 75).

(2) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ 2004 L 134, p. 114).

the European Parliament and of

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: SALIX Grundstücks-Vermietungsgesellschaft mbH &
Co. Objekt Offenbach KG

Defendant: Finanzamt Düsseldorf-Süd