CELEX: C2001/227/18
Language: en
Date: 2001-08-11 00:00:00
Title: Case C-221/01: Action brought on 5 June 2001 by the Commission of the European Communities against the Kingdom of Belgium

11.8.2001              EN                    Official Journal of the European Communities                                        C 227/11
      (a)   the packaging of the goods is to be regarded as the         —     Order the Kingdom of Belgium to pay the costs.
            shape of the goods for the purpose of Article 3(1)(e)
            of the directive; and
      (b) the packaging of the goods may serve to designate
            the (external) quality of the packaged goods for the        Pleas in law and main arguments
            purpose of Article 3(1)(c) of the directive?
2.    In the case of three-dimensional trade marks which                —     Failure correctly to transpose Article 7(5) of Directive
      consist of the packaging of goods which are normally                    97/33/EC: under the last two sentences of the second
      traded in packaged form does the establishment of                       subparagraph of Article 7(5) of Directive 97/33, com-
      distinctive character within the meaning of Article 3(1)(b)             pliance with the cost accounting system must be verified.
      of the directive turn on whether or not the average                     The Directive states that a statement concerning com-
      consumer, who is reasonably well-informed and reason-                   pliance must, in addition, be published annually. Those
      ably observant and circumspect, is able to recognise the                obligations are not included in the Belgian legislation.
      characteristic features of the three-dimensional trade
      mark applied for, which differ from the norm or custom
      in the sector and are therefore decisive as regards its           —     Failure correctly to transpose Article 9(3) of Directive
      capability of serving as an indication of origin, even                  97/33/EC: the provisions communicated by the Belgian
      without conducting an analytical or comparative examin-                 authorities as implementing measures, namely the fifth
      ation or without paying particular attention?                           subparagraph of Article 109B(4) of the Law of 21 March
                                                                              1991 and Articles 8 and 12 of a decree of 20 April 1999,
3.    Can the necessary assessment of distinctive character be                only partially cover the obligations imposed by the
      made solely on the basis of the relevant national trade                 Directive, since Article 109B(4) concerns solely the
      perceptions without further official investigations being               obligation imposed by the Belgian legislature on organis-
      necessary to establish whether and to what extent ident-                ations with ‘significant [market] power’ to publish a
      ical or comparable trade marks have been registered or                  reference offer which may be used as a basis for
      refused registration in other Member States of the Euro-                subsequent negotiations; it is that reference offer which
      pean Union?                                                             may be changed by the Institute, a possibility which
                                                                              clearly cannot be construed as a right of intervention in
                                                                              favour of that institute in any negotiation or discussion
(1) OJ L 40 of 11.2.1989, p. 1.                                               concerning an interconnection agreement. Nor do the
                                                                              provisions of the Decree of 20 April 1999 provide for
                                                                              the regulatory authorities to be able to intervene in the
                                                                              negotiations ‘on their own initiative at any time’.
                                                                        —     Failure correctly to transpose Article 14(1) and (2): in
                                                                              respect of the information relating to the reference
Action brought on 5 June 2001 by the Commission of the                        interconnection offer, which is identified in Article 7(3)
 European Communities against the Kingdom of Belgium                          of the Directive, and the main elements of the national
                                                                              numbering plans referred to in Article 12(4) of the
                                                                              Directive, the Belgian authorities have opted for a means
                         (Case C-221/01)
                                                                              of communication in accordance with Article 14(2)
                                                                              of the Directive, whereas Article 7(3) is covered by
                         (2001/C 227/18)                                      Article 14(1) which requires easy access to the infor-
                                                                              mation and therefore access which is more direct than
An action against the Kingdom of Belgium was brought before                   that by individual request. In respect of the information
the Court of Justice of the European Communities on 5 June                    referred to in Article 9(2) of the Directive (general
2001 by the Commission of the European Communities,                           conditions of interconnection) and the information
represented by H. van Lier, acting as Agent, with an address                  referred to in Article 10 of the Directive, the Belgian
for service in Luxembourg.                                                    legislation does not provide for any publication or
                                                                              communication in any form whatever. Finally, in respect
The Commission of the European Communities claims that                        of the information referred to in Article 9(3) of the
the Court should:                                                             Directive, the Belgian legislation still does not provide for
                                                                              access at the request of interested parties.
—     Declare, pursuant to Article 226 EC, that by failing to
      adopt all the laws, regulations or administrative pro-
      visions necessary to comply with Directive 97/33/EC of
      the European Parliament and of the Council of 30 June
      1997 on interconnection in Telecommunications with                (1) OJ L 199 of 26.07.1997, p. 32.
      regard to ensuring universal service and interoperability
      through application of the principles of Open Network
      Provision (ONP) (1), in particular with Articles 7(5), 9(3)
      and 14(1) and (2) thereof, Belgium has failed to fulfil its
      obligations under that directive; and