Source: EURLEX
Language: en
Format: md

C 317/12 EN Official Journal of the European Communities 10.11.2001

meaning of Article 1(1) of that directive, including the **Action brought on 24 August 2001 by Commission of the**
exercise of the powers referred to in Article 2(1)(c) **European Communities against Italian Republic**
thereof, is precluded from dismissing an application by a
tenderer that is indirectly aimed at obtaining damages,
**(Case C-323/01)**
where the contract award procedure is already tainted by
a material legal infringement attributable to a decision
(2001/C 317/20)
taken by the contracting authority, other than the decision
being contested by that tenderer, on the ground that if
the contested decision had not been taken the tenderer An action against the Italian Republic was brought before the
would none the less have been harmed for other reasons? Court of Justice of the European Communities on 24 August
2001 by the Commission of the European Communities,
3. If Question 1 is answered in the negative: Is Council represented by Richard Wainwright and Roberto Amorosi,
acting as Agents.
Directive 93/36/EEC( [2] ) of 14 June 1993 coordinating
procedures for the award of public supply contracts, in
particular Articles 15 to 26 thereof, to be interpreted as The applicant claims that the Court should:
prohibiting a public contracting authority conducting
contract award procedures from taking account of refer- 1. Declare that, by failing to adopt and bring into force
ences relating to the products offered by tenderers not as within the prescribed period the laws, regulations or
proof of the tenderers’ suitability but to satisfy an award administrative provisions necessary to comply with Comcriterion, such that the fact that those references are given mission Directive 98/101/EC( [1] ) of 22 December 1998
a negative evaluation would not exclude the tenderer adapting to technical progress Council Directive
from the contract award procedure but would merely 91/157/EEC( [2] ) on batteries and accumulators containing
result in the tender receiving a lower evaluation, for certain dangerous substances, the Italian Republic has
example under a points system in which a poor evaluation failed to fulfil its obligations under that directive;
of references might be offset by a lower price?
2. Order the Italian Republic to pay the costs.
4. If Questions 1 and 3 are answered in the negative: Is it
compatible with the relevant provisions of Community
law, including Article 26 of Directive 93/36/EEC, the
_Pleas in law and main arguments_
principle of equal treatment and the obligations of the
Communities under international law for an award
criterion to provide that product references are to be The mandatory nature of the provisions of the third paragraph
evaluated on the basis of the number of references alone, of Article 249 and the first paragraph of Article 10 of the EC
there being no substantive examination as to whether Treaty requires Member States to adopt the measures necessary
contracting authorities’ experiences of the product have to transpose directives addressed to them into their domestic
been good or bad, and, moreover, that only references law before the expiry of the period prescribed for doing so.
from the geographical area comprising the part of the That period expired on 1 January 2000 without Italy having
Alps within the European Union are to be taken into brought into force the necessary provisions.
account?

( [1] ) OJ 1999 L 1, p. 1.
5. Is it compatible — with Community law, in particular
( [2] ) OJ 1991 L 78, p. 38.
the principle of equal treatment, for an award criterion to
permit opportunities to inspect examples of the subject
of the invitation to tender to receive a positive evaluation
only if available within a 300 kilometre radius of the
authority issuing the invitation to tender?

6. If Question 3 is answered in the affirmative, or Question 4 **Appeal brought on 29 August 2001 (by fax on 27 August**
or 5 answered in the negative: Is Article 2(1)(c) of **2001) by Telefon & Buch Verlagsgesellschaft mbH, against**
Directive 89/665/EEC, if necessary considered in conjunc- **the judgment delivered on 14 June 2001 by the Fourth**
tion with other principles of Community law, to be **Chamber of the Court of First Instance of the European**
interpreted as meaning that if the contracting authority’s **Communities in Joined Cases T-357/99 and T-358/99**
infringement consists in imposing an unlawful award **between Telefon & Buch VerlagsgmbH and the Office for**
criterion, the tenderer will be entitled to damages only if **Harmonisation in the Internat Market (Trade Marks and**
he can actually prove that, but for the unlawful award **Designs) (OHIM)**
criterion, he would have submitted the best tender?

**(Case C-326/01 P)**

( [1] ) OJ 1989 L 395, p. 33.
(2001/C 317/21)
( [2] ) OJ 1993 L 199, p. 1.

An appeal against the judgment delivered on 14 June 2001 by
the Fourth Chamber of the Court of First Instance of the

10.11.2001 EN Official Journal of the European Communities C 317/13

European Communities in Joined Cases T-357/99 and **Action brought on 31 August 2001 by the Commission**
T-358/99 between Telefon & Buch VerlagsgmbH and the **of the European Communities against Ireland**
Office for Harmonisation in the Internat Market (Trade Marks
and Designs) (OHIM) was brought before the Court of Justice
**(Case C-327/01)**
of the European Communities on 29 August 2001 (by fax on
27 August 2001) by Telefon & Buch VerlagsgmbH, represented
by Dr Hans Georg Zeiner, Zeiner & Zeiner Chambers, Schil- (2001/C 317/22)
linggasse 6, A-1010 Vienna.

An action against Ireland was brought before the Court of
Justice of the European Communities on 31 August 2001 by
The appellant claims that the Court should: the Commission of the European Communities, represented
by Mikko Huttunen, acting as agent, with an address for
service in Luxembourg.
1. set aside the judgment of the Court of First Instance of
14 June 2001 in Joined Cases T-357/99 and T-358/99
Telefon & Buch VerlagsgmbH v Office for Harmonisation
The Applicant claims that the Court should:
in the Internat Market;

(1) declare that by. failing to adopt the laws, regulations
2. declare that the words UNIVERSALTELEFONBUCH and or administrative provisions necessary to comply with
UNIVERSALKOMMUNIKATIONSVERZEICHNIS are Council Directive 98/20/EC( [1] ) of 30 March 1998
capable of comprising European Community trade marks, amending Directive 92/14/EEC( [2] ) on the limitation of the
satisfy the requirements of Article 4 of Regulation operation of aeroplanes covered by Part II, Chapter 2,
No 40/94 and are not merely descriptive within the Volume 1 of Annex 16 to the Convention on Intermeaning of Article 7(1)(c) of that regulation; national Civil Aviation, second edition (1988) or, in any
event, by failing to inform the Commission of those
measures, Ireland has failed to fulfil its obligations under
3. refer the case back to the Office for Harmonisation in the
that Directive;
Internat Market for further consideration and decision,
requiring it to follow the view as to the law of the Court
(2) order Ireland to pay the costs.
of Justice of the European Communities;

4. order the Office for Harmonisation in the Internat Market
to pay the costs of these proceedings. _Pleas in law and main arguments_

The pleas in law and main arguments are analogous to those
in Case C-323/01( [3] ); the time-limit for transposition expired
_Pleas in law and main arguments_ on 1 March 1999.

( [1] ) OJ L 107, 7.4.1998, p. 4.
Article 7(1)(c) of Council Regulation (EC) No 40/94 of ( [2] ) OJ L 76, 23.3.1992, p. 21.
20 December 1993 on the Community trade mark( [1] ) has been ( [3] ) See page 12 of this Official Journal.
infringed because it was interpreted too broadly and therefore
incorrectly: the neologisms at issue here, acknowledged by the
Court of First Instance as such, cannot be signs which are
subject to a requirement of availability. It would be an
interference with the creativity of economic operators to
reserve for commercial dealings words which have not yet
been used, or have not yet been used for certain goods or
services, and therefore clearly are also not needed for such
**Action brought on 31 August 2001 by the Commission**
dealings; that appears untenable on the basis of Regulation
**of the European Communities against Ireland**
No 40/94. If the ground for excluding protection, contained
in Article 7(1)(c) of Regulation No 40/94, were interpreted as
broadly as the Court of First Instance has interpreted it in the **(Case C-328/01)**
contested judgment, Article 12(b) of that regulation would be
superfluous.
(2001/C 317/23)

An action against Ireland was brought before the Court of
( [1] ) OJ L 11, 14.1.1994, p. 1. Justice of the European Communities on 31 August 2001 by
the Commission of the European Communities, represented
by Mikko Huttunen, acting as agent, with an address for
service in Luxembourg.