Case C-569/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 22 December 2008 — Internetportal und Marketing GmbH v Richard Schlicht
Date: 2008-12-22
Institutions: Court of Justice
Subjects: Austria, EU trade mark, interpretation of the law, originating product, product designation, trade-mark law

C 69/22

EN

Official Journal of the European Union

21.3.2009

Parties to the main proceedings

Applicants:

1. Combinatie Spijker Infrabouw/De Jonge Konstruktie

2. Van Spijker Infrabouw B.V.

3. De Jonge Konstruktie B.V.

Defendant: Provincie Drenthe

Questions referred

1 (a) Must Article 1(1) and (3) and Article 2(1) and (6) of
Directive 89/665/EEC (1) be interpreted as meaning that
they have not been complied with if the legal protection
to be afforded by national courts in disputes relating to
tendering procedures governed by European law is
impeded by the fact that conflicting decisions may arise
under a system in which both administrative courts and
civil courts may have jurisdiction with respect to the
same decision and its consequences?

(b) Is it permissible in this context for the administrative
courts to be confined to forming an opinion and ruling
on the tendering decision, and if so, why and/or under
what conditions?

(c) Is it permissible in this context for the Algemene wet
bestuursrecht (Netherlands General Law on Administra-
tive Law), which, as a rule, governs applications for
access to the administrative courts, to exclude such appli-
cations in the case of decisions concerning the conclu-
sion of a contract by the contracting authority with one
of
the tenderers, and if so, why and/or under what
conditions?

(d) Is the answer to Question 2 of relevance in this context?

2 (a) Must Article 1(1) and (3) and Article 2(1) and (6) of
Directive 89/665/EEC be interpreted as meaning that
they have not been complied with if the only procedure
for obtaining a rapid decision is characterised by the fact
that
is in principle geared to a rapid mandatory
measure, that lawyers have no right to exchange views,
that [no] evidence is, as a rule, presented in other than
written form and that statutory rules on evidence are not
applicable?

it

(b) If not, does this also apply if the decision does not lead
to the final determination of the legal situation and does
not form part of a decision-making process leading to
such a final decision?

(c) Does it make a difference in this context if the decision
is binding only on the parties to the proceedings, even
though other parties may have an interest?

3. Is it compatible with Directive 89/665/EEC for a court, in
interim relief proceedings, to order the contracting public
authority to take a tendering decision which is subsequently
deemed, in proceedings on the substance, to be contrary to
tendering rules under European law?

4.

(a) If the answer to the previous question is in the negative,
must the contracting public authority be deemed liable
in that regard, and if so, in what sense?

(b) Does the same apply if the answer to that question is in

the affirmative?

(c) If that authority is required to pay damages, does Com-
munity law set criteria for determining and estimating
those damages, and if so, what are they?

(d) If the contracting public authority cannot be deemed
liable,
is it possible, under Community law, for some
other person to be shown to be liable, and on what
basis?

5. If it in fact appears to be impossible, or extremely difficult,
under national law and/or with the aid of the answers to the
above questions to attribute liability, what must the national
court do?

(1) Council Directive 89/665/EEC of 21 December 1989 on the coordi-
nation 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).

Reference for a preliminary ruling from the Oberster
lodged on 22 December 2008 —
Gerichtshof (Austria)

Internetportal und Marketing GmbH v Richard Schlicht

(Case C-569/08)

(2009/C 69/40)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Internetportal und Marketing GmbH

Defendant: Richard Schlicht

21.3.2009

EN

Official Journal of the European Union

C 69/23

Questions referred

Action brought on 29 December 2008 — Commission of
the European Communities v United Kingdom of Great
Britain and Northern Ireland

1. Is Article

21(1)(a)

of Commission Regulation

(EC)
No 874/2004 of 28 April 2004 laying down public policy
rules concerning the implementation and functions of the .
eu Top Level Domain and the principles governing registra-
tion (1) to be interpreted as meaning that a right within the
meaning of that provision exists,

(a) if, without any intention to use it for goods or services, a
trade mark is acquired only for the purpose of being able
to register in the first phase of phased registration a
domain corresponding to a German-language generic
term?

Parties

(Case C-582/08)

(2009/C 69/41)

Language of the case: English

(b) if the trade mark underlying the domain registration and
coinciding with a German-language generic term deviates
from the domain in so far as the trade mark contains
special characters which were eliminated from the
domain name although the special characters were
capable of being rewritten and their elimination has the
effect that the domain differs from the trade mark in a
way which excludes any likelihood of confusion?

2. Is Article 21(1)(a) of Regulation (EC) No 874/2004 to be
interpreted as meaning that a legitimate interest exists only
in the cases mentioned in Article 21(2)(a) to (c)?

If that question is answered in the negative:

3. Does

a

legitimate

interest within the meaning

of
Article 21(1)(a) of Regulation (EC) No 874/2004 exist if the
domain holder intends to use the domain — coinciding with
a German-language generic term — for a thematic internet
portal?

If questions (1) and (3) are answered in the affirmative:

4. Is Article 21(3) of Regulation (EC) No 874/2004 to be inter-
preted as meaning that only the circumstances mentioned in
subparagraphs (a) to (e) are capable of establishing bad faith
within the meaning of Article 21(1)(b) of Regulation (EC)
No 874/2004?

If that question is answered in the negative:

5. Does bad faith within the meaning of Article 21(1)(b) of
Regulation (EC) No 874/2004 exist if a domain was regis-
tered in the first phase of phased registration on the basis of
a trade mark, coinciding with a German-language generic
term, which the domain holder acquired only for
the
purpose of being able to register the domain in the first
phase of phased registration and thereby to pre-empt other
including the holders of rights to the
interested parties,
mark?

(1) OJ 2004 L 162, p. 40.

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal, M. Afonso, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland

The applicant claims that the Court should:

the European Community,

— declare that by denying recovery of input tax in respect of
certain transactions carried out by taxable persons not estab-
lished in the territory of
the
United Kingdom has failed to comply with its obligations
under Articles 169, 170 and 171 of Council Directive
2006/112/EC (1) of 28 November 2006 on the common
system of value added tax and with Article 2(1) of the Thir-
teenth VAT Directive 86/560/EEC (2) of 17 November 1986
on the harmonization of the laws of the Member States
relating to turnover taxes — Arrangements for the refund of
value added tax to taxable persons not established in Com-
munity territory;

— order United Kingdom of Great Britain and Northern Ireland

to pay the costs.

Pleas in law and main arguments

and

The Commission submits that Article 2(1) of the Thirteenth
VAT Directive cannot be interpreted as excluding the refund of
VAT charged on goods or services used for the purposes of the
insurance
in
Article 17(3)(c) of the Sixth VAT directive (3). The Commission
therefore takes the view that the United Kingdom legislation, in
so far as it denies the right to a refund of that VAT to taxable
persons not established in the territory of the European Com-
munity, is in breach of Community law.

transactions mentioned

financial

(1) OJ L 347, p. 1.
(2) OJ L 326, p. 40.
(3) OJ L 145, p. 1. Sixth Council Directive 77/388/EEC of 17 May 1977
on the harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform basis
of assessment.