Case C-458/06: Judgment of the Court (Fourth Chamber) of 12 June 2008 (reference for a preliminary ruling from the Regeringsrätten, Sweden) — Skatteverket v Gourmet Classic Ltd (Jurisdiction of the Court — Directive 92/83/EEC — Harmonisation of the structures of excise duties on alcohol and alcoholic beverages — Article 20, first indent — Alcohol contained in cooking wine — Exemption from the harmonised duty)
Date: 2008-06-12
Institutions: Court of Justice
Subjects: Combined Nomenclature, alcohol, alcoholic beverage, excise duty, interpretation of the law, tax harmonisation, wine

C 209/8

EN

Official Journal of the European Union

15.8.2008

Judgment of the Court (Third Chamber) of 19 June 2008
(reference for a preliminary ruling from the Bundes-
vergabeamt, Austria) — pressetext Nachrichtenagentur
(Bund), APA-OTS
GmbH v Republik Österreich
Originaltext — Service GmbH, APA Austria Presse
registrierte Genossenschaft mit beschränkter
Agentur

Haftung

(Case C-454/06) (1)

(Public procurement — Directive 92/50/EEC — Procedures for
the award of public service contracts — Concept of ‘award of
a contract’)

(2008/C 209/10)

Language of the case: German

Referring court

Bundesvergabeamt, Austria

Parties to the main proceedings

Applicant: pressetext Nachrichtenagentur GmbH

services

coordination of procedures for the award of public service contracts,
must be interpreted as not covering a situation, such as that in the
main proceedings, where
contracting
authority by the initial service provider are transferred to another
service provider established as a limited liability company, the sole
shareholder of which is the initial service provider, controlling the
new service provider and giving it instructions, provided that the
initial service provider continues to assume responsibility for compli-
ance with the contractual obligations.

supplied to the

the initial agreement

2. The terms ‘awarding’ and ‘awarded’, used in Articles 3(1) and 8
and 9 of Directive 92/50, must be interpreted as not covering an
to accommodate changed
adjustment of
external circumstances, such as the conversion to euros of prices
initially expressed in national currency, the minimal reduction in
the prices in order to round them off, and the reference to a new
price index where provision was made in the initial agreement to
replace the price index fixed previously.

3. The terms ‘awarding’ and ‘awarded’, used Articles 3(1), 8 and 9 of
Directive 92/50, must be interpreted as not covering a situation
such as that at issue in the main proceedings, where a contracting
authority, through the use of a supplemental agreement, agrees
with the contractor, during the period of validity of a contract
concluded with it for an indefinite period, to renew for a period of
three years a waiver of the right to terminate the contract by notice,
the waiver no longer being in force at the time of the amendment,
and agrees with it to lay down higher rebates than those initially
provided for in respect of certain volume-related prices within a
specified area of supply.

Defendants: Republik Österreich (Bund), APA-OTS Originaltext
— Service GmbH, APA Austria Presse Agentur
registrierte
Genossenschaft mit beschränkter Haftung

(1) OJ C 326, 30.12.2006.

Re:

Reference for a preliminary ruling — Bundesvergabeamt —
Interpretation of Article 82 EC, of Article 3(1), Articles 8 and 9
and Article 11(3)(b) of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award
of public service contracts (OJ 1992 L 209, p. 1), of Article 1(3)
and Article 2(1)(c) of Council Directive 89/665/EEC of
21 December 1989 on the coordination of the laws, regulations
and administrative provisions relating to the application of
review procedures to the award of public supply and public
works contracts (OJ 1989 L 395, p. 33) and of general princi-
ples of Community law — Contract for services of indefinite
duration concluded on behalf of the State with a press agency,
regarded as the sole national press agency, outside the proce-
dures for awarding public contracts — Transfer, with the
consent of the contracting authority, of performance of various
parts of the contract to a company entirely controlled by the
service provider, and other contract amendments concerning
waiver of the right to termination of the contract by contracting
authority, payment for the services provided and the rebate
granted to the contracting authority — Whether those subse-
quent amendments are to be classified as a new ‘contract award’
necessitating prior publication of a contract notice

Judgment of the Court (Fourth Chamber) of 12 June 2008
(reference for a preliminary ruling from the Regerings-
rätten, Sweden) — Skatteverket v Gourmet Classic Ltd

(Case C-458/06) (1)

(Jurisdiction of the Court — Directive 92/83/EEC — Harmo-
nisation of the structures of excise duties on alcohol and alco-
holic beverages — Article 20,
indent — Alcohol
contained in cooking wine — Exemption from the harmonised
duty)

first

(2008/C 209/11)

Language of the case: Swedish

Operative part of the judgment

Referring court

1. The terms ‘awarding’ and ‘awarded’, used in Articles 3(1), 8 and 9
of Council Directive 92/50/EEC of 18 June 1992 relating to the

Regeringsrätten

15.8.2008

EN

Official Journal of the European Union

C 209/9

Parties to the main proceedings

Defendant: Hutchison 3G UK Limited

Applicant: Skatteverket

Defendant: Gourmet Classic Ltd

Re:

Reference for a preliminary ruling — Regeringsrätten — Inter-
pretation of the first indent of Article 20 of Council Directive
92/83/EEC of 19 October 1992 on the harmonisation of the
structures of excise duties on alcohol and alcoholic beverages
(OJ 1992 L 316, p. 21) — Exemption from duty — Product
based on wine, with an alcoholic content of 4.8 % per 100 kg
of finished product, intended for cooking

Operative part of the judgment

The alcohol contained in cooking wine is, if it has an alcoholic strength
exceeding 1.2 % by volume, to be classified as ethyl alcohol as referred
to in the first indent of Article 20 of Council Directive 92/83/EEC of
19 October 1992 on the harmonisation of the structures of excise
duties on alcohol and alcoholic beverages.

(1) OJ C 326, 30.12.2006.

Judgment of the Court (First Chamber) of 12 June 2008
(reference for a preliminary ruling from the Court of
Appeal, United Kingdom) — O2 Holdings Limited, O2
(UK) Limited v Hutchison 3G UK Limited

(Case C-533/06) (1)

(Trade marks — Directive 89/104/EEC — Article 5(1) —
Exclusive rights of the trade mark proprietor — Use of a sign
identical with, or similar to, a mark in a comparative adver-
tisement — Limitation of the effects of a trade mark —
Comparative advertising — Directives 84/450/EEC and
97/55/EC — Article 3a(1) — Conditions under which
comparative advertising is permitted — Use of a competitor's
trade mark or of a sign similar to that mark)

(2008/C 209/12)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: O2 Holdings Limited, O2 (UK) Limited

Re:

Reference for a preliminary ruling — Court of Appeal — Inter-
pretation of Article 5(1)(a) and (b) of Council Directive
89/104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40, p. 1)
and Article 3a of Council Directive 84/450/EEC of 10 September
1984 relating to the approximation of the laws, regulations and
administrative provisions of
the Member States concerning
misleading advertising (OJ 1984 L 250, p. 17) — Use of a
competitor's trade mark in an advertisement for the purposes of
comparing the characteristics of the goods or services sold by
the advertiser with those of the competitor

Operative part of the judgment

1. Article 5(1) and (2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member States
relating to trade marks and Article 3a(1) of Council Directive
84/450/EEC of 10 September 1984 concerning misleading and
comparative advertising, as amended by Directive 97/55/EC of the
European Parliament and of the Council of 6 October 1997, must
be interpreted to the effect that the proprietor of a registered trade
mark is not entitled to prevent the use by a third party of a sign
identical with, or similar to, his mark, in a comparative advertise-
ment which satisfies all the conditions, laid down in Article 3a(1)
of Directive 84/450, under which comparative advertising is
permitted.

However, where the conditions required in Article 5(1)(b) of Direc-
tive 89/104 to prevent the use of a sign identical with, or similar
to, a registered trade mark are met, a comparative advertisement in
which that sign is used cannot satisfy the condition, laid down in
Article 3a(1)(d) of Directive 84/450, as amended by Directive
97/55, under which comparative advertising is permitted.

2. Article 5(1)(b) of Directive 89/104 is

to be interpreted as
meaning that
the proprietor of a registered trade mark is not
entitled to prevent the use by a third party, in a comparative adver-
tisement, of a sign similar to that mark in relation to goods or
services identical with, or similar to, those for which that mark was
registered where such use does not give rise to a likelihood of confu-
sion on the part of the public, and that is so irrespective of whether
or not the comparative advertisement satisfies all the conditions laid
down in Article 3a of Directive 84/450, as amended by Directive
97/55, under which comparative advertising is permitted

(1) OJ C 56, 10.3.2007.