CELEX: C2002/219/08
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-249/02: Action brought on 9 July 2002 by Portuguese Republic against Commission of the European Communities

C 219/4                 EN                    Official Journal of the European Communities                                     14.9.2002
2.    Is it of importance as regards the acceptability of discon-              (b) If the answer to Question 3(a) is affirmative:
      tinuing the procedure that the content of the invitation
      to tender is defective because of the incorrectness of the                   How is the said reference in the third sentence of
      assessment previously made by the contracting authority?                     Article 16(1) of the TRIPS Agreement to existing
                                                                                   prior rights to be interpreted in the case of a trade
                                                                                   name which is not registered or established in the
( 1) OJ L 199, p. 1.                                                               State in which the trade mark is registered and in
                                                                                   which protection is sought for the trade mark
                                                                                   against the trade name in question, having regard to
                                                                                   the obligation under Article 8 of the Paris Conven-
                                                                                   tion to afford protection to a trade name regardless
                                                                                   of whether it is registered and to the fact that the
                                                                                   permanent appellate body of the WTO has regarded
                                                                                   the reference in Article 2(1) of the TRIPS Agreement
Reference for a preliminary ruling by the korkein oikeus                           to Article 8 of the Paris Convention as meaning
by order of that Court of 3 July 2002 in the case                                  that WTO members are obliged under the TRIPS
of Anheuser-Busch, Incorporated against Budéjovický                               Agreement to protect trade names in accordance
                     Budvar, národní podnik                                        with the latter article? When assessing, in such a
                                                                                   case, whether a trade name has a legal basis prior to
                                                                                   a trade mark for the purposes of the third sentence
                          (Case C-245/02)                                          of Article 16(1) of the TRIPS Agreement, may it thus
                                                                                   be considered as decisive:
                          (2002/C 219/07)                                          (i)   whether the trade name was well-known at
                                                                                         least to some extent among the relevant trade
                                                                                         circles, in the State in which the trade mark is
                                                                                         registered and in which protection is sought
Reference has been made to the Court of Justice of the                                   for it, before the point in time at which
European Communities by order of the korkein oikeus                                      registration of the trade mark was applied for
(Supreme Court) of 3 July 2002, received at the Court Registry                           in the State in question; or
on 5 July 2002, for a preliminary ruling in the case of
Anheuser-Busch, Incorporated against Budéjovický Budvar,                          (ii)  whether the trade name was used in commerce
národní podnik on the following questions:                                               directed to the State in which the trade mark is
                                                                                         registered and in which protection is sought
1.    If the collision of a trade mark and a sign alleged to                             for it before the point in time at which
      infringe it is situated at a point in time before the entry                        registration of the trade mark was applied for
      into force of the TRIPS Agreement, do the provisions of                            in the State in question; or
      the TRIPS Agreement apply to the question of which
      right has the earlier legal basis, when the alleged infringe-                (iii) what other factor may decide whether the trade
      ment of the trade mark is said to continue after the date                          name is to be regarded as an existing prior
      on which the TRIPS Agreement entered into force in the                             right within the meaning of the third sentence
      Community and the Member States?                                                   of Article 16(1) of the TRIPS Agreement?
2.    If the answer to Question 1 is affirmative:
      (a)   Can the trade name of an undertaking also act as a
            sign for goods or services within the meaning of
            the first sentence of Article 16(1) of the TRIPS
            Agreement?
                                                                         Action brought on 9 July 2002 by Portuguese Republic
                                                                             against Commission of the European Communities
      (b) If the answer to Question 2(a) is affirmative, on
            what conditions may a trade name be regarded as a
            sign for goods or services within the meaning of                                     (Case C-249/02)
            the first sentence of Article 16(1) of the TRIPS
            Agreement?                                                                           (2002/C 219/08)
3.    If the answer to Question 2(a) is affirmative:
      (a)   How is the reference in the third sentence of Article        An action against the Commission of the European Communi-
            16(1) of the TRIPS Agreement to existing prior               ties was brought before the Court of Justice of the European
            rights to be interpreted? May the right to a trade           Communities on 9 July 2002 by the Portuguese Republic,
            name also be regarded as an existing prior right             represented by Luis Fernandes, acting as Agent, and Carlos
            within the meaning of the third sentence of Article          Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
            16(1) of the TRIPS Agreement?                                address for service in Luxembourg.
 ---pagebreak--- 14.9.2002              EN                    Official Journal of the European Communities                                            C 219/5
The applicant claims that the Court should:                             —       Plea of illegality: illegality of Article 49(5) of Regulation
                                                                                (EC) No 445/2002 (4) in that it is contrary to the principle
                                                                                of non-retroactivity of legislative provisions: should the
—     annul the decision of 18 April 2002 of the Director                       contested measure be understood as having been adopted
      General of the Directorate General for Agriculture of the                 on the basis of Regulation (EC) No 445/2002 rather than
      European Commission bearing reference number AGRI/                        of Regulation (EC) No 1750/1999, it would still be
      G/4-D11703, headed ‘Portugal — EAGGF — Guarantee                          defective on the ground that the scheme provided for by
      — 2002 — Application of Article 39(3) of Commission                       Article 49(5) of the former regulation is invalid. The new
      Regulation (EC) No 1750/99 ( 1) — Correction to                           wording of Article 49(5) of Regulation (EC) No 445/
      advances’;                                                                2002 provides, with retroactive effect, that the exemption
                                                                                from the penalty initially provided for in Article 39(3) of
                                                                                Regulation (EC) No 1750/1999 — which corresponds to
                                                                                the current Article 49(4) of Regulation (EC) No 445/2000
—     order the defendant institution to pay the costs.
                                                                                — may be applied only to the expenditure declaration
                                                                                submitted in 2000. Nevertheless, despite having been
                                                                                submitted in time by the national authorities, the three
                                                                                RDPs for Portugal were not approved by the Commission
                                                                                until the 2001 financial year, thus rendering it materially
                                                                                and logically impossible for a declaration to be submitted
Pleas in law and main arguments                                                 in 2000 for expenditure incurred in respect of pro-
                                                                                grammes which were not approved until the 2001
                                                                                financial year. The Commission’s aim in retrospectively
                                                                                amending the provision at issue was to prevent arbitrarily
—     Lack of competence:
                                                                                the application of the exemption under Article 39(4)
                                                                                of Regulation (EC) No 1750/1999, without the least,
                                                                                plausible, reason.
—     The Director General of the Directorate General for
      Agriculture does not possess the power to adopted a
      measure such as that at issue in the present case, so that,
      since he has not had any powers delegated to him, he has
      acted ultra vires.                                                —       Manifest error in the application of the scheme provided
                                                                                for in Article 49(4) of Regulation (EC) No 445/2002.
—     By basing the calculation for the reduction on a value
      which had not yet been approved by the Commission
      and which he himself fixed, the Director General exceeded         —       Breach of the obligation to provide a statement of reasons
      his powers, thus infringing Article 7(3) of Regulation No                 required by Article 253 of the EC Treaty.
      (EC) 1258/1999. (2)
—     Error in law: The contested decision does not have any
      legal basis whatever. It was approved on the basis of
      Regulation (EC) No 1750/1999 which was no longer in               (1 ) Commission Regulation (EC) No 1750/1999 of 23 July 1999
      force at the time when it was approved.                                laying down detailed rules for the application of Council Regu-
                                                                             lation (EC) No 1257/1999 on support for rural development from
                                                                             the European Agricultural Guidance and Guarantee Fund (EAGGF)
                                                                             (OJ 1999 L 214, p. 31).
—     Manifest error in the application of Article 39(4) of             (2 ) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
      Regulation (EC) No 1750/1999: Even if it were accepted                 financing of the common agricultural policy (OJ 1999 L 160,
      that Regulation (EC) No 1750/1999 applies in the present               p. 13).
      case, only 2001 may be regarded as the year in which was          (3 ) Council Regulation (EC) No 1257/1999 of 17 May 1999 on
      submitted the first declaration of expenditure incurred in             support for rural development from the European Agricultural
      respect of the rural development programming docu-                     Guidance and Guarantee Fund (EAGGF) and amending and
                                                                             repealing certain Regulations (OJ 1999 L 160, p. 80).
      ments, in accordance with Regulation (EC) No 1257/
                                                                        (4 ) Commission Regulation (EC) No 445/2002 of 26 February
      1999. ( 3) Funding for rural development for 2000 was                  2002 laying down detailed rules for the application of Council
      received by Portugal under the former common agricul-                  Regulation (EC) No 1257/1999 on support for rural development
      tural policy accompanying measures for 1992. For that                  from the European Agricultural Guidance and Guarantee Fund
      reason, by virtue of Article 4 of Regulation (EC) No 1750/             (EAGGF) (OJ 2002 L 74, p. 1).
      1999, the penalties provided for in Article 3 of that
      regulation cannot be applied in respect of the 2001
      financial year.
—     Manifest error in the application of the scheme provided
      for in Article 39(3) of Regulation (EC) No 1750/1999.