CELEX: C2001/095/09
Language: en
Date: 2001-03-24 00:00:00
Title: Case C-43/01 P: Appeal brought on 1 February 2001 by Sandro Cognigni against the order made on 30 November 2000 by the Court of First Instance of the European Communities (First Chamber) in Case T-314/00 Sandro Cognigni vo Commission of the European Communities

24.3.2001              EN                   Official Journal of the European Communities                                              C 95/5
Reference for a preliminary ruling form the Kilpailuneu-               Must the words ‘put to genuine use’ in Article 12(1) of
vosto by order of that tribunal of 14 December 2000 in                 Directive 89/104/EEC (1) be interpreted in the manner set out
the case of Arkkitehtuuritoimisto Riitta Korhonen Oy,                  in paragraph 3.4 above (2) and, if the answer is in the negative,
Arkkitehtitoimisto Pentti Toivanen Oy and Rakennuttaja-                on the basis of which (other) criterion must the meaning of
    toimisto Vilho Tervomaa v Varkauden Taitotalo Oy                   ‘genuine use’ be determined?
                          (Case C-18/01)                               Can there be ‘genuine use’ as referred to above also where no
                                                                       new goods are traded under the trade mark but other activities
                          (2001/C 95/07)                               are engaged in as set out in subparagraphs (v) and (vi) of
                                                                       paragraph 3.1 above (3)?
Reference has been made to the Court of Justice of the
European Communities by an order of the Kilpailuneuvosto
(Competition Council), Finland, of 14 December 2000, which
was received at the Court Registry on 16 January 2001, for a           (1) OJ L 40 of 11.2.1989.
preliminary ruling in the case of Arkkitehtuuritoimisto Riitta         (2) The question whether a particular use can be regarded as ‘genuine
Korhonen Oy, Arkkitehtitoimisto Pentti Toivanen Oy and                     use’ can be answered only (i) by taking into consideration all the
Rakennuttajatoimisto Vilho Tervomaa v Varkauden Taitotalo                  facts and circumstances specific to the case whereby (ii) the
Oy on the following question:                                              decisive factor is whether all the facts and circumstances specific
                                                                           to the case, when viewed in connection with one another and in
                                                                           the context of what is regarded as usual and commercially justified
Is a share company which a town owns and in which the town                 in the relevant sector of the trade, create the impression that the
exercises control to be regarded as a contracting authority                use serves to find or preserve a market for goods and services
within the meaning of Article 1(b) of Council Directive                    under that trade mark and not simply to maintain the trade mark,
92/50/EEC relating to the coordination of procedures for the               and whereby (iii) account must generally be taken, as regards
award of public service contracts (1), if the company acquires             these facts and circumstances, of the kind, extent, frequency,
design and project management services for a building project              regularity and duration of the use in conjunction with the kind of
comprising offices to be leased to undertakings?                           goods or service and the kind and size of the undertaking.
                                                                       (3) Sale of components and extinguishing compositions for fire-
As a supplementary question, the Kilpailuneuvosto enquires                 extinguishing apparatus covered by the trade mark MINIMAX to
whether it affects the decision on the point that the town’s               undertakings which maintained similar apparatus. Maintaining,
                                                                           checking, regauging, repairing and overhauling of fire-
building project endeavours to create the conditions for
                                                                           extinguishing apparatus marked with the trade mark MINIMAX,
business activity to be carried on in the town.                            using stickers bearing the words ‘Gebruiksklaar Minimax’ (Read
                                                                           for use — Minimax).
As a second supplementary question, the Kilpailuneuvosto
enquires whether it affects the decision on the point that the
offices to be built are leased to one undertaking only.
(1) OJ L 209 of 24.7.1992, p. 1.
                                                                       Appeal brought on 1 February 2001 by Sandro Cognigni
                                                                       against the order made on 30 November 2000 by the
                                                                       Court of First Instance of the European Communities
                                                                       (First Chamber) in Case T-314/00 Sandro Cognigni vo
Reference for a preliminary ruling by the Hoge Raad der                         Commission of the European Communities
Nederlanden by order of 26 January 2001 in the case of
         Ansul B.V. and Ajax Brandbeveiliging B.V.
                                                                                                 (Case C-43/01 P)
                          (Case C-40/01)
                                                                                                  (2001/C 95/09)
                          (2001/C 95/08)
                                                                       An appeal has been brought before the Court of Justice of the
Reference has been made to the Court of Justice of the                 European Communities on 1 February 2001 by Sandro
European Communities by order of 26 January 2001 by                    Cognigni, represented by Walter Massucci, of the Fermo (AP)
the Hoge Raad der Nederlanden (Supreme Court of the                    Bar, having Chambers in Pedaso, 5 Via Giovanni XXIII, against
Netherlands), which was received at the Court Registry on              the order made on 30 November 2000 by the Court of First
31 January 2001, for a preliminary ruling in the case of Ansul         Instance of the European Communities (First Chamber) in Case
B.V. and Ajax Brandbeveiliging B.V. on the following questions:        T-314/00 Sandro Cognigni v Commission of the EC.
 ---pagebreak--- C 95/6                  EN                    Official Journal of the European Communities                                      24.3.2001
The appellant claims that the Court should:                                    or administrative provisions necessary to comply with
                                                                               Council Directive 95/63/EC of 5th December 1995 (1)
—     Set aside the order under appeal and refer the case to the               amending Directive 89/655/EEC (2) concerning the mini-
      Court having jurisdiction in the matter;                                 mum safety and health requirements for the use of work
                                                                               equipment by workers at work and/or failing to inform
—     Order the Commission to pay the costs of the proceedings                 the Commission thereof and
      before both Community Courts.
                                                                         —     condemn Ireland to bear the costs of the procedure.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
(1)    The legal definition of the action at first instance
                                                                         Article 249 EC, under which a directive shall be binding as to
       Having regard to the action at first instance, and bearing        the result to be achieved, upon each Member State, carries by
       in mind the fact that the formal issue of the legal               implication an obligation on the Member States to observe the
       definition thereof cannot be regarded as precluding the           period for compliance laid down in the directive. That period
       admissibility of an action, it appears permissible to argue       expired on 5 December 1998 without Ireland having enacted
       that the grounds set out on that point in the order under         the provisions necessary to comply with the directive referred
       appeal ought to be censured in their entirety.                    to in the conclusions of the Commission.
(2)    The jurisdiction of the Court of First Instance                   (1) OJ L 335, 30.12.1995, p. 28.
                                                                         (2) OJ L 393, 30.12.1989, p. 13.
       It is clear that, since this case involves a dispute
       between a Community institution and the member of a
       consultative committee established by that institution,
       the Court of First Instance has jurisdiction to deal with
       the dispute.
       It is further evident that, pursuant to Article 91 of             Reference for a preliminary ruling by the Tribunale di
       the Staff Regulations applicable to officials and other           Siena, by order of that court of 26 January 2001 in
       servants of the European Communities, the Court of                the case of Milena Castellani v Istituto Nazionale della
       Justice has jurisdiction in any dispute between the                                  Previdenza Sociale (INPS)
       Community and ‘any person to whom these Staff
       Regulations apply’. Since the Court of First Instance
       ruled that it lacked jurisdiction in favour of the Court of                                 (Case C-50/01)
       Justice, the Court of First Instance ought, of its own
       motion, to have ensured that the application was                                            (2001/C 95/11)
       forwarded to the Court having jurisdiction in the matter.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale di Siena
                                                                         (District Court, Siena) of 26 January 2001, which was received
                                                                         at the Court Registry on 5 February 2001, for a preliminary
                                                                         ruling in the case of Milena Castellani v Istituto Nazionale della
Action brought on 5 February 2001 by the Commission                      Previdenza Sociale (INPS), on the following questions:
        of the European Communities against Ireland
                                                                         Is the rule precluding aggregation of the accounting value of
                          (Case C-48/01)                                 the special supplementary pay with the payments made to a
                                                                         worker in the reference period (Article 2(4) of Legislative
                          (2001/C 95/10)                                 Decree No 80/1992) compatible — inter alia in the light of
                                                                         past ruling of the Court of Justice concerning that decree —
An action against Ireland was brought before the Court of                with EEC Directive 987/80 (1), and in particular:
Justice of the European Communities on 5 February 2001 by
the Commission of the European Communities, represented                  (1) Can that non-aggregability be regarded as conforming
by Ms Nicola Yerrell, Member of its legal Service, acting as                   with the purpose of the directive which appears
agent, with an address for service at the office of Mr Carlos                  (Article 3(1)) to be to ensure the payment of outstanding
Gómez de la Cruz, also a member of its Legal Service, Centre                  claims in respect of wages arising within a specified time
Wagner, Kirchberg, Luxembourg.                                                 span (Article 3(2)) and in respect of a certain period
                                                                               (Article 4(1) and (2))? or
The Applicant requests that the Court should:
                                                                         (2) Does that non-aggregability reflect a rule concerning
—     find that Ireland has failed to fulfil its obligations under             assistance, not conforming with the social criterion on
      the EC Treaty by failing to adopt the laws, regulations                  which Directive 987/80 is based?