CELEX: C2001/317/21
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-326/01 P: Appeal brought on 29 August 2001 (by fax on 27 August 2001) by Telefon & Buch Verlagsgesellschaft mbH, against the judgment delivered on 14 June 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-357/99 and T-358/99 between Telefon & Buch VerlagsgmbH and the Office for Harmonisation in the Internat Market (Trade Marks and Designs) (OHIM)

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
     taken by the contracting authority, other than the decision                                   (2001/C 317/20)
     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,
     Directive 93/36/EEC (2) of 14 June 1993 coordinating               acting as Agents.
     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 Com-
     criterion, 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
     principle of equal treatment and the obligations of the            Pleas in law and main arguments
     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
 ---pagebreak--- 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
of the European Communities on 29 August 2001 (by fax on                                         (Case C-327/01)
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 Inter-
      meaning 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
      of Justice of the European Communities;                           (2) order Ireland to pay the costs.
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.