Source: EURLEX
Language: en
Format: md

C 146/6 EN Official Journal of the European Union 21.6.2003

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 10 April 2003**

**In Joined Cases C-20/01 and C-28/01: Commission of the**
**European Communities vFederal Republic of Germany** ( [1] )

_**(Failure by a Member State to fulfil its obligations —**_
_**Admissibility — Legal interest in bringing proceedings —**_
_**Directive 92/50/EEC — Procedures for the award of public**_
_**service contracts — Negotiated procedure without prior**_
_**publication of a contract notice — Conditions)**_

(2003/C 146/09)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Joined Cases C-20/01 and C-28/01, Commission of the
European Communities (Agent: J. Schieferer) v Federal Republic of Germany (Agent: W.-D. Plessing, assisted by H.-J. Prieß)
supported by United Kingdom of Great Britain and Northern
Ireland (Agent: R. Magrill, assisted by R. Williams, barrister):
Applications for declarations that:

—
by failing to invite tenders for the award of the contract
for the collection of waste water in the Municipality of
Bockhorn (Germany) and to publish notice of the results
of the procedure for the award of the contract in the
Supplement to the Official Journal of the European
Communities, the Federal Republic of Germany, at the
time of the award of that public service contract, failed to
fulfil its obligations under Article 8 in conjunction with
Article 15(2) and Article 16(1) 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);

—
at the time of the award of a public service contract, the
Federal Republic of Germany failed to fulfil its obligations
under Article 8 and Article 11(3)(b) of Directive 92/50
by virtue of the fact that the City of Braunschweig
(Germany) awarded a contract for waste disposal by
negotiated procedure without prior publication of a
contract notice, although the criteria laid down by
Article 11(3) for an award of a contract by privately
negotiated procedure without a Community-wide invitation to tender had not been met,

the Court (Fifth Chamber), composed of: M. Wathelet, President of the Chamber, D. A. O. Edward, A. La Pergola, P. Jann
(Rapporteur) and A. Rosas, Judges; L. A. Geelhoed, Advocate
General; M.-F. Contet, Administrator, for the Registrar, has
given a judgment on 10 April 2003, in which it:

1. _Declares that since the Municipality of Bockhorn (Germany)_
_failed to invite tenders for the award of the contract for the_
_collection of its waste water and failed to publish notice of the_
_results of the procedure for the award of the contract in the_
_Supplement to the Official Journal of the European Communi-_
_ties, the Federal Republic of Germany, at the time of the award_
_of that public service contract, failed to fulfil its obligations_
_under Article 8 in conjunction with Article 15(2) and_
_Article 16(1) of Council Directive 92/50/EEC of 18 June_
_1992 relating to the coordination of procedures for the award_
_of public service contracts;_

2. _Declares that since the City of Braunschweig (Germany)_
_awarded a contract for waste disposal by negotiated procedure_
_without prior publication of a contract notice, although the_
_criteria laid down in Article 11(3) of Directive 92/50 for an_
_award by privately negotiated procedure without a Community-_
_wide invitation to tender had not been met, the Federal Republic_
_of Germany, at the time of the award of that public service_
_contract, failed to fulfil its obligations under Article 8 and_
_Article 11(3)(b) of that directive;_

3. _Orders the Federal Republic of Germany to pay the costs;_

4. _Orders the United Kingdom of Great Britain and Northern_
_Ireland to bear its own costs._

( [1] ) OJ C 61 of 24.2.2001.

**JUDGMENT OF THE COURT**

**of 6 May 2003**

**in Case C-104/01 (Reference for a preliminary ruling from**
**the Hoge Raad der Nederlanden): Libertel Groep BV v**
**Benelux-Merkenbureau,** ( [1] )

_**(Trade marks — Approximation of laws — Directive 89/**_
_**104/EEC — Signs capable of constituting a trade mark—**_
_**Distinctive character — Colour per se — Orange)**_

(2003/C 146/10)

_(Language of the case: Dutch)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-104/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between Libertel Groep BV and Benelux-Merkenbureau,
on the interpretation of Article 3 of First 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,

21.6.2003 EN Official Journal of the European Union C 146/7

p. 1), the Court, composed of: J.-P. Puissochet, President of the
Sixth Chamber, acting for the President, M. Wathelet and
C. W. A. Timmermans, Presidents of Chambers, C. Gulmann,
D. A. O. Edward, P. Jann, F. Macken, S. von Bahr and
J. N. Cunha Rodrigues (Rapporteur), Judges; P. Léger, Advocate
General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 6 May 2003, in which it has
ruled:

1. _A colour per se, not spatially delimited, may, in respect of_
_certain goods and services, have a distinctive character within_
_the meaning of Article 3(1)(b) and Article 3(3) of First Council_
_Directive 89/104/EEC of 21 December 1988 to approximate_
_the laws of the Member States relating to trade marks, provided_
_that, inter alia, it may be represented graphically in a way that_
_is clear, precise, self-contained, easily accessible, intelligible,_
_durable and objective. The latter condition cannot be satisfied_
_merely by reproducing on paper the colour in question, but may_
_be satisfied by designating that colour using an internationally_
_recognised identification code._

2. _In assessing the potential distinctiveness of a given colour as a_
_trade mark, regard must be had to the general interest in not_
_unduly restricting the availability of colours for the other traders_
_who offer for sale goods or services of the same type as those in_
_respect of which registration is sought._

3. _A colour per se may be found to possess distinctive character_
_within the meaning of Article 3(1)(b) and Article 3(3) of_
_Directive 89/104, provided that, as regards the perception of_
_the relevant public, the mark is capable of identifying the_
_product or service for which registration is sought as originating_
_from a particular undertaking and distinguishing that product_
_or service from those of other undertakings._

4. _The fact that registration as a trade mark of a colour per se is_
_sought for a large number of goods or services, or for a specific_
_product or service or for a specific group of goods or services, is_
_relevant, together with all the other circumstances of the_
_particular case, to assessing both the distinctive character of the_
_colour in respect of which registration is sought, and whether_
_its registration would run counter to the general interest in not_
_unduly limiting the availability of colours for the other operators_
_who offer for sale goods or services of the same type as those in_
_respect of which registration is sought._

5. _In assessing whether a trade mark has distinctive character_
_within the meaning of Article 3(1)(b) and Article 3(3) of_
_Directive 89/104, the competent authority for registering trade_
_marks must carry out an examination by reference to the actual_
_situation, taking account of all the circumstances of the case_
_and in particular any use which has been made of the mark._

( [1] ) OJ C 200 of 14.7.2001.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 8 May 2003**

**in Case C-111/01 (Reference for a preliminary ruling from**
**the Oberster Gerichtshof): Gantner Electronic GmbH v**
**Basch Exploitatie Maatschappij BV** ( [1] )

_**(Brussels Convention — Article 21 — Lis pendens — Set-**_
_**off)**_

(2003/C 146/11)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-111/01: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
by the Oberster Gerichtshof (Austria) for a preliminary ruling
in the proceedings pending before that court between Gantner
Electronic GmbH and Basch Exploitatie Maatschappij BV,
on the interpretation of Article 21 of the abovementioned
Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
amended by the Convention of 9 October 1978 on the
accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978
L 304, p. 1, and — amended text — p. 77), by the Convention
of 25 October 1982 on the accession of the Hellenic Republic
(OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on
the accession of the Kingdom of Spain and the Portuguese
Republic (OJ 1989 L 285, p. 1) and by the Convention of
29 November 1996 on the accession of the Republic of
Austria, the Republic of Finland and the Kingdom of Sweden
(OJ 1997 C 15, p. 1), the Court (Fifth Chamber), composed
of: M. Wathelet (Rapporteur), President of the Chamber,
C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr,
Judges; P. Léger, Advocate General; M.-F. Contet, Principal
Administrator, for the Registrar, has given a judgment on
8 May 2003, in which it has ruled:

_Article 21 of the Convention of 27 September 1968 on Jurisdiction_
_and the Enforcement of Judgments in Civil and Commercial Matters,_
_as amended by the Convention of 9 October 1978 on the accession_
_of the Kingdom of Denmark, Ireland and the United Kingdom of_
_Great Britain and Northern Ireland, by the Conventionof 25 October_
_1982 on the accession of the Hellenic Republic, by the Convention_
_of 26 May 1989 on the accession of the Kingdom of Spain and the_
_Portuguese Republic, and by the Convention of 29 November 1996_
_on the accession of the Republic of Austria, the Republic of Finland_
_and the Kingdom of Sweden, must be construed as meaning that, in_
_order to determine whether two claims brought between the same_
_parties before the courts of different Contracting States have the same_