Case C-160/08: Action brought on 16 April 2008 — Commission of the European Communities v Federal Republic of Germany
Date: 2008-04-16
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, first aid, freedom to provide services, invitation to tender, public service, right of establishment

15.8.2008

EN

Official Journal of the European Union

C 209/19

Other parties to the proceedings: Office for Harmonisation in the
Internal Market
and Designs) Torrefacção
Camelo Lda

(Trade Marks

Form of order sought

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities of 30 January 2008 delivered in
Case T-128/06 and deliver a judgment amending the judg-
ment of the Court of First Instance and declaring it neces-
sary to apply the prohibition contained in Article 8(5) of
the Community Trade Mark Regulation (1) to this case and,
consequently,
in considering the arguments submitted by
Japan Tobacco, decide to refuse the registration of Com-
munity trade mark No 1 469 121;

— order OHIM to pay the costs of these proceedings.

— declare that, by failing to publish notices of contracts
awarded and by failing to make a public call for tenders or
failing transparently to award service contracts in the field
the Federal Republic of
of public ambulance services,
Germany has failed to fulfil its obligations under Directives
92/50/EEC (1) and 2004/18/EC (2) and infringed the princi-
ples of freedom of establishment and freedom to provide
services (Articles 43 EC and 49 EC);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

the appellant claims that

By its appeal,
the Court of First
Instance infringed the Community Trade Mark Regulation and,
more specifically, Article 8(5) thereof. Despite the fact that the
Court of First Instance recognised the reputation of the earlier
mark, the similarity between the marks in question and the
connection between the goods designated by the marks,
it
required actual, real and current evidence of harm to the earlier
mark, whilst Article 8(5) requires a mere likelihood of harm to
that mark, of unfair advantage being taken of its distinctive
character or of detriment to it.

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

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

Action brought on 16 April 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-160/08)

(2008/C 209/27)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by M. Kellerbauer and D. Kukovec, Agents)

Defendant: Federal Republic of Germany

The Commission states that its attention has been drawn by
several complaints to the procurement practice for service
contracts in the field of public ambulance services in the Federal
Republic of Germany. Those complaints objected to the fact that
contracts in that field were, as a rule, not the subject of a call
for tenders and not awarded transparently. In the Commission's
view,
the generally small number of Europe-wide calls for
tenders for ambulance services by local authorities as bodies
responsible for
the public ambulance service (13 contract
notices in a period of six years, by only 11 out of the 400-plus
German districts and cities with district status) is evidence of a
widespread practice in Germany of not awarding those ambu-
lance services in accordance with the requirements of the Euro-
pean procurement directives and the fundamental principles of
those contracts were awarded
Community law. Moreover,
without measures to ensure the appropriate transparency and to
avoid discrimination.

It says that by that award practice the Federal Republic of
Germany has failed to fulfil
its obligations under Directives
92/50/EEC and 2004/18/EC and infringed the principles of
freedom of establishment and freedom to provide services laid
down in Articles 43 EC and 49 EC, in particular the prohibition
of discrimination contained in those principles.

It

responsible for

Local authorities as bodies
the ambulance
service are contracting authorities within the meaning of
Article 1(b) of Directive 92/50/EEC or Article 1(9) of Directive
should also be undisputed that contracts
2004/18/EC.
awarded in the field of public ambulance services constitute
public contracts for consideration that are caught by those direc-
tives and clearly exceed the relevant threshold value for the
directives to be applicable. It follows from all those circum-
stances that the contracts for services in question should have
been awarded in the procedures laid down by the directives and
in compliance with their general provisions on equal treatment
and non-discrimination.

C 209/20

EN

Official Journal of the European Union

15.8.2008

Since the present case concerns contracts of obvious cross-
border interest, in addition to the obligations under Directives
92/50/EEC and 2004/18/EC the general principles of freedom
of establishment and freedom to provide services under the EC
Treaty were also infringed by the awards that were made
without transparency.

Ambulance services, like transport services and medical services
in the context of the public ambulance service, do not fall
within the exceptions in Article 45 EC in conjunction with
Article 55 EC, under which activities which in a given Member
State are connected, even occasionally, with the exercise of offi-
cial authority are excluded, as far as that State is concerned,
from the chapter of the EC Treaty on freedom of establishment
and freedom to provide services. The exception in Article 45 EC,
which as an exception to the fundamental freedoms must be
is strictly limited to those activities which
interpreted strictly,
constitute as such a direct and specific participation in the exer-
cise of public power. The question of whether public power is
being exercised is not to be answered by reference to the public-
law nature of the activity in question; rather, what is decisive is
the possibility of making use, as against the citizen, of public
powers and powers of coercion.

The Commission is convinced that the award practice in the
field of the ambulance service could, even if foreign providers of
services take part, be designed in such a way that a comprehen-
sive,
rapid and high-quality ambulance service is ensured
throughout the country.

(1) OJ 1992 L 209, p. 1.
(2) OJ 2004 L 134, p. 114.

Appeal brought on 29 April 2008 by the Commission of
the European Communities against the judgment delivered
on 14 February 2008 in Case T-351/05, Provincia di
Imperia v Commission of the European Communities

(Case C-183/08 P)

(2008/C 209/28)

Language of the case: French

Form of order sought

— annul

the judgment of

the Court of First

Instance of

14 February 2008 in Case T-351/05;

— declare that the action brought by the Provincia di Imperia

in that case was inadmissible;

— order the Provincia di
costs in the present case.

Imperia to pay the Commission's

Pleas in law and main arguments

By its appeal, the Commission complains that the judgment
under appeal failed to apply the conditions governing the admis-
sibility of an action for annulment brought under Article 230 EC,
in particular by considering that the applicant at first instance
had an interest in bringing an action. An action for annulment
brought by a natural or legal person is only admissible in so far
as the outcome of the action is likely to produce a benefit for
the applicant. In the present case, the action brought by the
applicant is manifestly inadmissible since a judgment annulling
the contested act would, in itself, in no way produce a ‘benefit’
for that applicant. The granting of a subsidy is effectively a
concession agreed to by the Commission and a party
responding to a call for proposals consequently has no right to
such a subsidy.

Alternatively, the Commission submits that, even if the appli-
cant at first instance did have an interest in bringing an action
on the day it brought its action, that interest would in any event
have disappeared by the time the judgment under appeal was
delivered, since the entire budget set aside for the call for propo-
sals had been used up and the programming had come to an
end.

SA against

Appeal brought on 16 May 2008 by American Clothing
Associates
delivered on
the
28 February 2008 by the Court of First Instance (Fifth
Chamber) in Case T-215/06, American Clothing Associates
SA v OHIM

judgment

(Case C-202/08 P)

(2008/C 209/29)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Martin and L. Flynn, Agents)

Parties

Other party to the proceedings: Provincia di Imperia

Appellant: American Clothing Associates SA (represented by: P.
Maeyaert, N. Clarembeaux and C. De Keersmaeker, lawyers)