CELEX: C2004/021/08
Language: en
Date: 2004-01-24 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-429/01: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Failure to transpose Directive 90/219/EEC — Genetically modified organisms — Contained use)

C 21/4                   EN                            Official Journal of the European Union                                              24.1.2004
                  JUDGMENT OF THE COURT                                              represented by a stave divided into measures and showing, in
                                                                                     particular, a clef, musical notes and rests whose form indicates
                          (Sixth Chamber)                                            the relative value and, where necessary, accidentals.
                       of 27 November 2003                                     (1) OJ C 275 of 29.9.2001.
in Case C-283/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Shield Mark BV v Joost
                       Kist h.o.d.n. Memex (1)
(Trade marks — Approximation of laws — Directive 89/
104/EEC — Article 2 — Signs of which a trade mark may                                            JUDGMENT OF THE COURT
consist — Signs capable of being represented graphically —
Sound signs — Musical notation — Written description —                                                    (Sixth Chamber)
                           Onomatopoeia)
                                                                                                       of 27 November 2003
                           (2004/C 21/07)
                                                                               in Case C-429/01: Commission of the European Communi-
                     (Language of the case: Dutch)                                                   ties v French Republic (1)
(Provisional translation; the definitive translation will be published         (Failure of a Member State to fulfil obligations — Failure to
                    in the European Court Reports)                             transpose Directive 90/219/EEC — Genetically modified
                                                                                                   organisms — Contained use)
In Case C-283/01: Reference to the Court under Article 234                                                 (2004/C 21/08)
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
                                                                                                     (Language of the case: French)
court between Shield Mark BV and Joost Kist h.o.d.n. Memex,
on the interpretation of Article 2 of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of                         (Provisional translation; the definitive translation will be published
the Member States relating to trade marks (OJ 1989 L 40,                                            in the European Court Reports)
p. 1), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, J. N. Cunha
Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken
(Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-                    In Case C-429/01, Commission of the European Communities
eral; M.-F. Contet, Principal Administrator, for the Registrar,                (Agent: G. zur Hausen, assisted by M. van der Woude and
has given a judgment on 27 November 2003, in which it has                      V. Landes) with an address for service in Luxembourg, v French
ruled:                                                                         Republic (Agent: initially by G. de Bergues and D. Colas, then
                                                                               by G. de Bergues and C. Isidoro), with an address for service in
                                                                               Luxembourg, APPLICATION for a declaration that, by failing
1.    Article 2 of First Council Directive 89/104/EEC of 21 Decem-             to transpose correctly and in full Articles 14(a) and (b), 15(1)
      ber 1988 to approximate the laws of the Member States                    and (2), 16(1) and 19(2) to (4) of Council Directive 90/219/
      relating to trade marks is to be interpreted as meaning that             EEC of 23 April 1990 on the contained use of genetically
      sound signs must be capable of being regarded as trade marks             modified micro-organisms (OJ 1990 L 117, p. 1), as amended
      provided that they are capable of distinguishing the goods or            by Commission Directive 94/51/EC of 7 November 1994
      services of one undertaking from those of other undertakings             adapting to technical progress Directive 90/219 (OJ 1994
      and are capable of being represented graphically.                        L 297, p. 29), and by failing to transpose the provisions of
                                                                               that directive in respect of certain contained use by the
2.    Article 2 of Directive 89/104 must be interpreted as meaning             Ministry of Defence, the French Republic has failed to fulfil its
      that a trade mark may consist of a sign which is not in itself           obligations under that directive and Article 249 EC, the Court
      capable of being perceived visually, provided that it can be             (Sixth Chamber), composed of: V. Skouris, acting for the
      represented graphically, particularly by means of images, lines          President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
      or characters, and that its representation is clear, precise, self-      F. Macken and N. Colneric (Rapporteur), Judges; F.G. Jacobs,
      contained, easily accessible, intelligible, durable and objective.       Advocate General; R. Grass, Registrar, has given a judgment
      In the case of a sound sign, those requirements are not satisfied        on 27 November 2003, in which it:
      when the sign is represented graphically by means of a
      description using the written language, such as an indication            1.    Declares that, by failing to transpose correctly and in full
      that the sign consists of the notes going to make up a musical                 Article 14(a) and (b), first subparagraph, third sentence, and
      work, or the indication that it is the cry of an animal, or by                 Article 19(2) to (4) of Council Directive 90/219/EEC of
      means of a simple onomatopoeia, without more, or by means                      23 April 1990 on the contained use of genetically modified
      of a sequence of musical notes, without more. On the other                     micro-organisms, as amended by Commission Directive 94/
      hand, those requirements are satisfied where the sign is                       51/EC of 7 November 1994 adapting to technical progress
 ---pagebreak--- 24.1.2004                EN                           Official Journal of the European Union                                                    C 21/5
      Directive 90/219, and by failing to transpose the provisions of               of the assessment of the most economically advantageous tender
      that directive in respect of certain contained use by the Ministry            for a contract for the supply of electricity, an award criterion
      of Defence, the French Republic has failed to fulfil its obligations          with a weighting of 45 % which requires that the electricity
      under that directive;                                                         supplied be produced from renewable energy sources. The fact
                                                                                    that that criterion does not necessarily serve to achieve the
2.    Dismisses the remainder of the action;                                        objective pursued is irrelevant in that regard.
3.    Orders each party to bear its own costs.                                      On the other hand, that legislation does preclude such a
                                                                                    criterion where
(1) OJ C 369 of 22.12.2001.
                                                                                    —      It is not accompanied by requirements which permit the
                                                                                           accuracy of the information contained in the tenders to be
                                                                                           effectively verified,
                  JUDGMENT OF THE COURT
                                                                                    —      it requires tenderers to state how much electricity they can
                           (Sixth Chamber)                                                 supply from renewable energy sources to a non-defined
                                                                                           group of consumers, and allocates the maximum number
                        of 4 December 2003                                                 of points to whichever tenderer states the highest amount,
                                                                                           where the supply volume is taken into account only to the
in Case C-448/01 (Reference for a preliminary ruling from                                  extent that it exceeds the volume of consumption expected
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v                                            in the context of the procurement.
Republik Österreich, third parties: Stadtwerke Klagenfurt
             AG and Kärntner Elektrizitäts-AG (1)                                   It is for the national court to determine whether, despite the
                                                                                    contracting authority’s failure to stipulate a specific supply
(Directive 93/36/EEC — Public supply contracts — Concept                            period, the award criterion was sufficiently clearly formulated to
of the most economically advantageous tender — Award                                satisfy the requirements of equal treatment and transparency of
criterion giving preference to electricity produced from                            procedures for awarding public contracts.
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —                         2.    The Community legislation on public procurement requires the
Possibility of annulment only in the case of material influ-                        contracting authority to cancel an invitation to tender if it
ence on the outcome of the tender procedure — Illegality of                         transpires in review proceedings under Article 1 of Directive
an award criterion — Obligation to cancel the invitation to                         89/665 that a decision relating to one of the award criteria
                                 tender)                                            laid down by that authority is unlawful and it is therefore
                                                                                    annulled by the review body.
                            (2004/C 21/09)
                                                                              (1) OJ C 84 of 6.4.2002.
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                JUDGMENT OF THE COURT
                                                                                                           (Fifth Chamber)
In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling                                          of 27 November 2003
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:                    in Case C-497/01 (Reference for a preliminary ruling from
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on                    the Tribunal d’arrondissement de Luxembourg): Zita
the interpretation of Article 26 of Council Directive 93/36/                  Modes Sàrl v Administration de l’enregistrement et des
EEC of 14 June 1993 coordinating procedures for the award                                                     domaines (1)
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
                                                                              (Sixth VAT Directive — Article 5(8) — Transfer of a
21 December 1989 on the coordination of the laws, regu-
                                                                              totality of assets — Continuation by the transferee in
lations and administrative provisions relating to the application
                                                                              the same branch of business as the transferor — Legal
of review procedures to the award of public supply and public
                                                                                              authorisation to pursue the activity)
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts                                              (2004/C 21/10)
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the                                         (Language of the case: French)
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,                 (Provisional translation; the definitive translation will be published
Principal Administrator, for the Registrar, has given a judgment                                    in the European Court Reports)
on 4 December 2003, in which it has ruled:
1.    The Community legislation on public procurement does not                In Case C-497/01: Reference to the Court under Article 234
      preclude a contracting authority from applying, in the context          EC by the Tribunal d’arrondissement de Luxembourg (Luxem-