CELEX: C2003/070/24
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-38/03: Action brought on 3 February 2003 by the Commission of the European Communities against the Kingdom of Belgium

C 70/14                EN                      Official Journal of the European Union                                          22.3.2003
Pleas in law and main arguments                                        3.    order the Office for Harmonisation in the Internal Market
                                                                             (Trade Marks and Designs) to pay the costs of the
                                                                             proceedings both at first instance and on appeal.
Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period          Pleas and main arguments
expired on 10 July 2001 without Ireland having enacted the
provisions necessary to comply with the directive referred to          —     Incorrect, overly broad interpretation of the absolute
in the conclusions of the Commission.                                        ground for refusal set out in Article 7(1)(b) of Council
                                                                             Regulation No 40/94 on the Community trade mark:
                                                                             from the point of view of the average consumer, the
( 1) OJ L 175, 10.07.1999, p. 43.                                            mark applied for serves to identify the goods and services
                                                                             in respect of which registration is sought as originating
                                                                             from the appellant and, accordingly, to distinguish those
                                                                             goods and services from those of other undertakings.
                                                                             Considered as a whole, the sign consisting of a word
                                                                             element and additional graphic elements undoubtedly
                                                                             performs the function of providing a guarantee that all
                                                                             the goods or services bearing it have originated under the
                                                                             control of a single undertaking which is responsible for
                                                                             their quality.
Appeal brought on 3 February 2003 by BioID AG, in
                                                                       —     Had the Court of First Instance correctly interpreted the
judicial liquidation, against the judgment delivered on
                                                                             absolute ground for refusal set out in Article 7(1)(b), it
5 December 2002 by the Second Chamber of the Court
                                                                             would have had to examine the further plea alleging
of First Instance of the European Communities in Case
                                                                             infringement of Article 7(1)(c) and to reach the con-
T-91/01 between BioID AG, in judicial liquidation, and                       clusion, on the basis of its findings of fact, that the mark
the Office for Harmonisation in the Internal Market
                                                                             applied for was also not caught by the absolute ground
                   (Trade Marks and Designs)
                                                                             for refusal set out therein which applies where the signs
                                                                             or indications of which a mark consists are of an
                                                                             exclusively descriptive nature. In that regard, the Court of
                        (Case C-37/03 P)                                     Justice may, since the state of the proceedings so permits,
                                                                             give final judgment as provided by Article 54 of the
                                                                             Statute of the Court.
                         (2003/C 70/23)
                                                                       (1 ) Not yet published in the Official Journal of the European
                                                                            Communities.
An appeal against the judgment delivered on 5 December
2002 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-91/01 between BioID
AG, in judicial liquidation, and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) was brought
before the Court of Justice of the European Communities
on 3 February 2003 by BioID AG, in judicial liquidation,
represented by Dr Axel Nordemann, Rechtsanwalt, Boehmert               Action brought on 3 February 2003 by the Commission
& Boehmert, Meinekestr. 26, D-10719 Berlin, with an address            of the European Communities against the Kingdom of
for service in Luxembourg.                                                                          Belgium
                                                                                                (Case C-38/03)
The appellant claims that the Court should:
                                                                                                (2003/C 70/24)
1.    set aside the judgment of the Court of First Instance of
      5 December 2002 in Case T-91/01 BioID AG v Office for
      Harmonisation in the Internal Market (OHIM) ( 1);
                                                                       An action against the Kingdom of Belgium was brought
2.    annul the decision of the Second Board of Appeal of the          before the Court of Justice of the European Communities
      Office for Harmonisation in the Internal Market (Trade           on 3 February 2003 by the Commission of the European
      Marks and Designs) of 20 February 2001 in Appeal                 Communities, represented by L. Ström F. Simonetti, acting as
      R 538/1999-2;                                                    Agents.
 ---pagebreak--- 22.3.2003              EN                          Official Journal of the European Union                                            C 70/15
The applicant claims that the Court should:                                Belgian authorities (reliable scale of costs for patients and
                                                                           realities of the market) has to date been identified by the Court
                                                                           of Justice as an overriding requirement capable of justifying a
(a)   Declare that,                                                        measure having an effect equivalent to quantitative restrictions.
                                                                           The Commission is of the view that a period of up to 9 months
                                                                           for including on the list of reimburseable wheelchairs those
      —     by laying down the technical criteria to be met by             bearing EC markings which, accordingly, meet the require-
            wheelchairs in order to be eligible for reimbursement          ments of public health and safety laid down in Directive 93/
            by social security in such a way as to exclude from            42, cannot be considered to be reasonable.
            the list of wheelchairs eligible for reimbursement
            those bearing EC markings but which do not meet
            the relevant criteria, namely, as regards the diameter
            of the front and rear wheels, the cover and filling of         (1 ) Council Directive 93/42/EEC of 14 June 1993 concerning medical
            the seat and back, the dimensions of the flat sections              devices (OJ 1993 L 169, p. 1).
            and crossbars, head rests and/or foot or leg rests;
      —     by laying down more general criteria which the
            economic operator must meet in order to be
            included on the list of reimburseable wheelchairs,
            namely special conditions for manual wheelchairs,
            as well as special conditions for power wheelchairs
            according to which such wheelchairs must be avail-
            able in a minimum number of seat sizes;
      —     by having been too rigid in its updating of the list of        Appeal brought on 3 February 2003 by Commission of the
            equipment eligible for the reimbursement scheme,               European Communities against the judgment delivered on
            the Kingdom of Belgium has failed to fulfil its                26 November 2002 by the Second Chamber, Extended
            obligations under Article 28 EC;                               Composition, of the Court of First Instance of the Euro-
                                                                           pean Communities in Joined Cases T-74/00, T-76/00, T-83/
                                                                           00 to T-85/00, T-132/00, T-137/00 and T-141/00 between
                                                                           Artegodan GmbH, Bruno Farmaceutici and Others,
(b)   Order the Kingdom of Belgium to pay the costs.
                                                                           Schuck GmbH, Laboratorios Roussel Lda, Laboratoires
                                                                           Roussel Diamant Sàrl, Roussel Iberica SA, Gerot Pharma-
                                                                           zeutika GmbH, Cambridge Healthcare Supplies Ltd and
                                                                           Laboratoires pharmaceutiques Trenker SA and Com-
                                                                                        mission of the European Communities
Pleas in law and main arguments
                                                                                                     (Case C-39/03 P)
Wheelchairs are medical devices within the meaning of Council
Directive 93/42/EEC of 14 June 1993 concerning medical                                                (2003/C 70/25)
devices (1). It follows that wheelchairs bearing an EC marking,
provided for in Article 17 of that directive, must be freely
placed on the market in all the Member States. Eligibility for
reimbursement determines to a large extent access to the
Belgian market in wheelchairs, the cost of which is in many
cases considerable and in respect of which eligibility for                 An appeal against the judgment delivered on 26 November
reimbursement is decisive in the choice of the patient.                    2002 by the Second Chamber, Extended Composition, of the
Keeping in place technical criteria conditioning eligibility for           Court of First Instance of the European Communities in Joined
reimbursement of wheelchairs is not justified by public health             Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00,
reasons, since all wheelchairs bearing EC markings are deemed              T-137/00 and T-141/00 between Artegodan GmbH, Bruno
to satisfy the safety criteria laid down by Directive 93/42/EEC.           Farmaceutici and Others, Schuck GmbH, Laboratorios Roussel
Moreover, the Belgian authorities have not shown in what way               Lda, Laboratoires Roussel Diamant Sàrl, Roussel Iberica SA,
making reimbursement for wheelchairs contingent on the                     Gerot Pharmazeutika GmbH, Cambridge Healthcare Supplies
satisfaction of certain technical criteria could contribute to             Ltd and Laboratoires pharmaceutiques Trenker SA and Com-
maintaining the financing of the health insurance system in                mission of the European Communities was brought before the
equilibrium. The requirement that wheelchairs should be                    Court of Justice of the European Communities on 3 February
available in a minimum range of chair sizes is not such as to              2003 by the Commission of the European Communities,
offer greater protection for the health and safety of users and            represented by R. Wainwright and H. Støvlbæk, assisted by
other persons. None of the objectives relied upon by the                   B. Wägenbauer, with an address for service in Luxembourg.