Source: EURLEX
Language: en
Format: md

5.1.2002 EN Official Journal of the European Communities C 3/15

**Reference for a preliminary ruling by the Arbeitsgericht** 3. Is Article 6 of Directive 93/104/EC in itself unconditional
**Lörrach by orders of 26 September 2001 in the cases of** and sufficiently precise to be capable of being relied on
**Bernhard Pfeiffer, Wilhelm Roith, Albert Süss, Michael** by individuals before national courts where the State has
**Winter, Klaus Nestvogel, Roswitha Zeller and Matthias** not properly transposed the directive into national law?
**Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut**
**e.V.**

( [1] ) OJ L 307, p. 18.
**(Cases C-397/01 to C-403/01)** ( [2] ) OJ L 183, p. 1.

(2002/C 3/21)

Reference has been made to the Court of Justice of the
European Communities by orders of 26 September 2001 of
the Arbeitsgericht Lörrach (Labour Court) Lörrach, which were
**Reference for a preliminary ruling by the Hoge Raad der**
received at the Court Registry on 12 October 2001 in the
cases of Bernhard Pfeiffer (C-397/01), Wilhelm Roith **Nederlanden by judgment of that court of 12 October**
**2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS**
(C-398/01), Albert Süss (C-399/01), Michael Winter
**BENELUX B.V. against FITNESS WORLD TRADING Ltd**
(C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller
(C-402/01) and Matthias Döbele (C-403/01) v Deutsches
Rotes Kreuz, Kreisverband Waldshut e.V (German Red Cross,
Waldshut District Association) for a preliminary ruling on the **(Case C-408/01)**
following questions:

(2002/C 3/22)
1(a) Is the reference in Article 1(3) of Council Directive
93/104/EC( [1] ) of 23 November 1993 concerning certain
aspects of the organisation of working time to Article 2(2)
of Council Directive 89/391/EEC( [2] ) of 12 June 1989 on
the introduction of measures to encourage improvements
in the safety and health of workers at work, under which Reference has been made to the Court of Justice of the
the directives are not applicable where characteristics European Communities by judgment of the Hoge Raad der
peculiar to certain specific activities in the civil protection Nederlanden of 12 October 2001, which was received at the
services inevitably conflict with their application, to be Court Registry on 15 October 2001, for a preliminary ruling
construed as meaning that the plaintiff’s activity as a in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V.
rescue worker is caught by this exclusion? against FITNESS WORLD TRADING Ltd on the following
questions:

1(b) Is the concept of road transport in Article 1(3) of
Directive 93/104/EC to be construed as meaning that 1. (a) Must Article 5(2) of the Directive be interpreted as
only those driving activities in which by their nature great meaning that, under a national law implementing
distances are covered and, consequently, working times that provision, the proprietor of a trade mark which
cannot be fixed owing to the unforeseeability of any is well known in the Member State concerned may
difficulties are excluded from the scope of the directive, also oppose the use of the trade mark or a sign
or is road transport within the meaning of this provision similar to it, in the manner and circumstances
also to be taken to mean the activity of land-based rescue referred to therein, in relation to goods or services
services, which comprises at least in part the driving of which are identical with or similar to those for
rescue vehicles and attendance on patients during the which the trade mark is registered?
journey?

(b) If the answer to Question 1(a) is in the negative:
2. In view of the judgment in Case C-303/98 Simap [2000] where Article 5(2) of the Directive is implemented
ECR I-0000, paragraphs 73 and 74, is Article 18(1)(b)(i) in a national law, must the concept of ‘likelihood of
of Directive 93/104/EC to be construed as meaning that confusion’ referred to in Article 5(1)(b) of the
consent given individually by a worker must expressly Directive be interpreted as meaning that there
refer to the extension of working time to more than exists such a likelihood if a person other than the
48 hours per week, or may such consent also reside in proprietor of the trade mark uses a well-known
the worker’s agreeing with the employer, in the contract trade mark or a sign similar to it, in the manner and
of employment, that working conditions are to be circumstances referred to in Article 5(2) of the
governed by a collective agreement which itself allows Directive, in relation to goods or services which are
working time to be extended to more than 48 hours on identical with or similar to those for which the trade
average? mark is registered?

C 3/16 EN Official Journal of the European Communities 5.1.2002

2. If the answer to Question 1(a) is in the affirmative: 3. Is the material outlay (in particular in regard to costs) in
which clients who have hitherto been supplied with the
product of the undertaking having a dominant market
(a) Must the question concerning the similarity between position would be involved if they were in future to go
the trade mark and the sign in such a case be over to purchasing the product of a competing undertakassessed on the basis of a criterion other than that ing which does not make use of the data bank protected
of (direct or indirect) confusion as to origin, and if by copyright relevant to the question of abusive conduct
so, according to what criterion? by an undertaking with a dominant position on the
market?

(b) If the sign alleged to be an infringement in such a
case is viewed purely as an embellishment by the
relevant section of the public, what importance must
be attached to that circumstance in connection with
the question concerning the similarity between the
trade mark and the sign?

**Reference for a preliminary ruling by the Bundesverga-**
**beamt (Austria) by order of 25 September 2001 in the**
**case of Traunfellner GmbH v O** **[¨ ]** **sterreichische Autobah-**
**nen- und Schnellstrassen-Finanzierungs-AG (O** **[¨ ]** **SAG)**

**Reference for a preliminary ruling by the Landgericht**
**Frankfurt am Main by order of that court of 12 July 2001** **(Case C-421/01)**
**in the case of IMS Health GmbH & Co. OHG v NDC**
**Health GmbH & Co**
(2002/C 3/24)

**(Case C-418/01)**

(2002/C 3/23)
Reference has been made to the Court of Justice of the
European Communities by order of 25 September 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 24 October 2001,
Reference has been made to the Court of Justice of the for a preliminary ruling in the case of Traunfellner GmbH v
O [¨ ] sterreichische Autobahnen- und Schnellstrassen-FinanEuropean Communities by order of the Landgericht Frankfurt
zierungs-AG (O [¨ ] SAG) on the following questions:
am Main (Regional Court) of 12 July 2001, which was received
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions: Question 1

Is an alternative tender that consists in proposing an asphalt
1. Is Article 82 EC to be interpreted as meaning that there is
surface instead of overlaying the carriageway with concrete as
abusive conduct by an undertaking with a dominant
specified in the tender document a ‘variant’ within the meaning
position on the market where it refuses to grant a licence
of the first paragraph of Article 19 of Directive 93/37/EEC( [1] )?
agreement for the use of a data bank protected by
copyright to an undertaking which seeks access to the
same geographical and actual market if the participants
Question 2
on the other side of the market, that is to say potential
clients, reject any product which does not make use of
the data bank protected by copyright because their set-up Can a criterion established in national legislation to determine
relies on products manufactured on the basis of that data the admissibility of the acceptance of a ‘variant’ within the
bank? meaning of the first paragraph of Article 19 of Directive
93/37/EEC, whereby ‘the performance of qualitatively equivalent work is ensured’ by the variant, properly be regarded as a
2. Is the extent to which an undertaking with a dominant ‘minimum specification’ required and stated by the contracting
position on the market has involved persons from the authority in accordance with the first and second paragraphs
other side of the market in the development of the data of Article 19 of Directive 93/37/EEC, if the tender document
bank protected by copyright relevant to the question of refers only to the national provision and does not specify the
abusive conduct by that undertaking? comparative parameters to be used to assess ‘equivalence’?