CELEX: C2003/101/27
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-26/03: Reference for a preliminary ruling by the Oberlandesgericht Naumburg by order of that Court of 8 January 2003 in the procurement review proceedings, Parties to the proceedings being 1. The City of Halle, 2. RPL Recyclingpark Lochau GmbH and 3. The Thermische Restabfall- und Energieverwertungsanlage TREA Leuna consortium

26.4.2003               EN                        Official Journal of the European Union                                             C 101/15
       b)   Under the Community law principle of pro-                            of a particular trader is that sufficient of itself to prove
            portionality, is the discretion to be exercised in                   that the shape has acquired a distinctive character within
            assessing the impact of overlaying waste that has                    the meaning of Art 3(3) of the Directive?
            not been treated prior to landfill with waste treated
            by thermal or mechanical and biological processes             3.     If that is insufficient, must it also be proved that the shape
            prior to landfill wide or narrow? Does the principle                 is used and relied upon by the relevant public as a
            of proportionality permit hazards caused by waste                    guarantee of trade origin?
            treated prior to landfill by mechanical processes
            alone to be offset by other safeguards?                       4.     If the preponderance of the public recognise a shape
                                                                                 mark as the product of one trader but a significant
                                                                                 minority also regard other shapes in use by other traders
( 1) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of                as the shape applied for, has the shape mark acquired a
     26 April 1999 on the landfill of waste).                                    ‘distinctive character’ within the meaning of Art 3(3) of
                                                                                 the Directive?
                                                                          (1 ) First Council Directive 89/104/EEC of 21 December 1988 to
                                                                               approximate the laws of the Member States relating to trade
                                                                               marks (OJ L 40 11.2.1989, p. 1).
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 18 December 2002, in the case of
      Société de produits Nestlé SA against Unilever plc
                                                                          Reference for a preliminary ruling by the Oberlandesge-
                            (Case C-7/03)                                 richt Naumburg by order of that Court of 8 January 2003
                                                                          in the procurement review proceedings, Parties to the
                          (2003/C 101/26)                                 proceedings being 1. The City of Halle, 2. RPL Recy-
                                                                          clingpark Lochau GmbH and 3. The Thermische
                                                                          Restabfall- und Energieverwertungsanlage TREA Leuna
                                                                                                        consortium
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                                                  (Case C-26/03)
Justice (England & Wales), Chancery Division, dated 18 Decem-
ber 2002, which was received at the Court Registry on
                                                                                                      (2003/C 101/27)
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:
                                                                          Reference has been made to the Court of Justice of the
1.     When considering signs which consist of the shape of               European Communities by order of the Oberlandesgericht
       goods, what is meant by ‘the nature of the goods                   Naumburg (Higher Regional Court, Naumburg) of 8 January
       themselves’ in Art 3(1)(e) of the Trade Marks Directive            2003, received at the Court Registry on 23 January 2003, for
       89/104 ( 1)? and in particular does that nature arise from:        a preliminary ruling in the procurement review proceedings,
                                                                          Parties to the proceedings being 1. The City of Halle, 2. RPL
       (a)  the specification of goods for which the trade mark           Recyclingpark Lochau GmbH and 3. The Thermische
            is registered (or applied for);                               Restabfall- und Energieverwertungsanlage TREA Leuna consor-
                                                                          tium, on the following questions:
       (b) the kind of goods for which the mark is used
            regarded as articles of commerce;                             I.     1.    Does the first sentence of Article 1(1) of Council
                                                                                       Directive 89/665/EEC of 21 December 1989 on the
                                                                                       coordination of the laws, regulations and adminis-
       (c)  only the inherent nature of non-man made articles;
                                                                                       trative provisions relating to the application of
            or
                                                                                       review procedures to the award of public supply and
                                                                                       public works contracts ( 1), as replaced by Article 41
       (d) the shape of the goods which makes the product                              of Council Directive 92/50/EEC of 18 June 1992
            different in appearance from similar competitive                           relating to the coordination of procedures for the
            products;                                                                  award of public service contracts ( 2), require Member
                                                                                       States to ensure that a decision taken by a con-
       (e)  something else, and if so what?                                            tracting authority to award a public contract other-
                                                                                       wise than by means of a procedure which complies
2.     Where the shape of a product which has been on the                              with the directives relating to the award of public
       market is merely shown to be recognised by a substantial                        contracts may be reviewed effectively and as rapidly
       proportion of the relevant public as denoting the goods                         as possible?
 ---pagebreak--- C 101/16             EN                        Official Journal of the European Union                                            26.4.2003
    2.   Does the first sentence of Article 1(1) of Directive                      2.1. Is a semi-public company to be deemed to be
         89/665 require Member States to ensure that                                     part of the contracting authority’s undertaking
         decisions of contracting authorities made prior to                              in terms of structure and degree of control
         the issue of a formal invitation to tender, in particu-                         where the contracting authority ‘controls’ it,
         lar the decision of the preliminary questions as to                             for example within the meaning of Article 1(2)
         whether a particular procurement process falls                                  and Article 13(1) of Council Directive 93/
         within the personal or material scope of application                            38/EEC of 14 June 1993 coordinating the
         of the directives relating to the award of public                               procurement procedures of entities operating
         contracts or, by way of exception, is outside the                               in the water, energy, transport and telecom-
         scope of procurement law, may be reviewed effec-                                munications sectors (5), as amended by the
         tively and as rapidly as possible?                                              1994 Acts of Accession ( 6) and by Directive
                                                                                         98/4/EC of the European Parliament and of
                                                                                         the Council of 16 February 1998 amending
                                                                                         Directive 93/38/EEC coordinating the procure-
                                                                                         ment procedures of entities operating in the
                                                                                         water, energy, transport and telecommuni-
                                                                                         cations sectors (7)?
    3.   If question I.1 is answered in the affirmative and
         question I.2 is answered in the negative: is the
         obligation of a Member State to ensure that a
                                                                                   2.2. Does any influence the private co-shareholder
         decision taken by a contracting authority to award a
                                                                                         in the semi-public company is entitled in law
         public contract otherwise than by means of a
                                                                                         to exert over the contracting partner’s strategic
         procedure which complies with the directives relat-
                                                                                         objectives and/or individual decisions relating
         ing to the award of public contracts may be reviewed
                                                                                         to the management of its undertaking preclude
         effectively and as rapidly as possible satisfied where
                                                                                         attributing the semi-public company to the
         review procedures cannot be raised until a specified,
                                                                                         contracting authority’s undertaking?
         formal stage in the procurement has been reached,
         for example the commencement of oral or written
         negotiations with a third party?
                                                                                   2.3. Is a semi-public company to be deemed to be
                                                                                         part of the contracting authority’s undertaking
                                                                                         in terms of structure and degree of control
                                                                                         where, so far as the procurement process
                                                                                         in question is concerned, the latter has a
                                                                                         comprehensive right of direction in respect
II. 1.   Where a contracting authority such as a regional or                             only of decisions relating to concluding the
         local authority plans to conclude in writing, with                              contract and supplying the services under it?
         an entity which is formally distinct from it (‘the
         contracting partner’), a service contract for pecuniary
         interest which would fall within Directive 92/50                          2.4. Is a semi-public company to be deemed to be
         relating to the coordination of procedures for the                              part of the contracting authority’s undertaking
         award of public service contracts, but, by way of                               in terms of carrying out the essential part of its
         exception, the contract would not be a public service                           activities together with the contracting auth-
         contract for the purposes of Article 1(a) of Directive                          ority where at least 80 % of the undertaking’s
         92/50, as amended by the 1994 Acts of Accession (3)                             average turnover within the Community during
         and European Parliament and Council Directive 97/                               the past three years in the services sector has
         52/EC (4), if the contracting partner were to be                                derived from the supply of services to the
         deemed to be part of the public administration or,                              contracting authority or undertakings affiliated
         as the case may be, of the contracting authority’s                              to or forming part of the contracting authority
         undertaking (‘procurement-exempt self-supply’),                                 (or, where the mixed undertaking has been in
         does the mere fact that a private undertaking is a                              operation for less than three years, it is expected
         shareholder in the contracting partner always pre-                              that it will satisfy this 80 % rule)?
         clude the classification of such a contract as a
         procurement-exempt self-supply?
                                                                       (1 ) OJ L 395 of 30.12.1989, p. 33.
                                                                       (2 ) OJ L 209 of 24.07.1992, p. 1.
                                                                       (3 ) OJ C 241 of 29.8.1994, p. 233.
                                                                       (4 ) OJ L 328 of 13.10.1997, p. 1.
                                                                       (5 ) OJ L 199 of 9.8.1993, p. 84.
    2.   If question II.1 is answered in the negative: what are        (6 ) OJ C 241 of 29.8.1994, p. 228.
         the criteria for determining whether a contracting            (7 ) OJ L 101 of 16.2.1998, p. 1.
         partner whose shareholders include a private person
         (‘semi-public company’) is to be deemed to be part
         of the public administration or, as the case may be, of
         the contracting authority’s undertaking? Specifically: