Source: EURLEX
Language: en
Format: md

26.4.2003 EN Official Journal of the European Union C 101/15

b) Under the Community law principle of proportionality, is the discretion to be exercised in
assessing the impact of overlaying waste that has
not been treated prior to landfill with waste treated
by thermal or mechanical and biological processes
prior to landfill wide or narrow? Does the principle
of proportionality permit hazards caused by waste
treated prior to landfill by mechanical processes
alone to be offset by other safeguards?

( [1] ) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of
26 April 1999 on the landfill of waste).

**Reference for a preliminary ruling by the High Court of**
**Justice (England & Wales), Chancery Division, by order**
**of that court dated 18 December 2002, in the case of**
**Société de produits Nestlé SA against Unilever plc**

**(Case C-7/03)**

(2003/C 101/26)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division,dated 18 December 2002, which was received at the Court Registry on
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:

1. When considering signs which consist of the shape of
goods, what is meant by ‘the nature of the goods
themselves’ in Art 3(1)(e) of the Trade Marks Directive
89/104( [1] )? and in particular does that nature arise from:

(a) the specification of goods for which the trade mark
is registered (or applied for);

(b) the kind of goods for which the mark is used
regarded as articles of commerce;

(c) only the inherent nature of non-man made articles;

or

(d) the shape of the goods which makes the product
different in appearance from similar competitive
products;

(e) something else, and if so what?

2. Where the shape of a product which has been on the
market is merely shown to be recognised by a substantial
proportion of the relevant public as denoting the goods

of a particular trader is that sufficient of itself to prove
that the shape has acquired a distinctive character within
the meaning of Art 3(3) of the Directive?

3. If that is insufficient, must it also be proved that the shape
is used and relied upon by the relevant public as a
guarantee of trade origin?

4. If the preponderance of the public recognise a shape
mark as the product of one trader but a significant
minority also regard other shapes in use by other traders
as the shape applied for, has the shape mark acquired a
‘distinctive character’ within the meaning of Art 3(3) of
the Directive?

( [1] ) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ L 40 11.2.1989, p. 1).

**Reference for a preliminary ruling by the Oberlandesge-**
**richt Naumburg by order of that Court of 8 January 2003**
**in the procurement review proceedings, Parties to the**
**proceedings being 1. The City of Halle, 2. RPL Recy-**
**clingpark** **Lochau** **GmbH** **and** **3.** **The** **Thermische**
**Restabfall- und Energieverwertungsanlage TREA Leuna**
**consortium**

**(Case C-26/03)**

(2003/C 101/27)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Naumburg (Higher Regional Court, Naumburg) of 8 January
2003, received at the Court Registry on 23 January 2003, for
a preliminary ruling in the procurement review proceedings,
Parties to the proceedings being 1. The City of Halle, 2. RPL
Recyclingpark Lochau GmbH and 3. The Thermische
Restabfall- undEnergieverwertungsanlage TREA Leunaconsortium, on the following questions:

I. 1. Does the first sentence of Article 1(1) 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( [1] ), as replaced by Article 41
of Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the
award of public service contracts ( [2] ), require Member
States to ensure that a decision taken by a contracting authority to award a public contract otherwise than by means of a procedure which complies
with the directives relating to the award of public
contracts may be reviewed effectively and as rapidly
as possible?