CELEX: C2003/055/29
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-21/03: Reference for a preliminary ruling by the Conseil d'État, section d'administration (Belgium) by judgment of that Court of 27 December 2002 in the case of Fabricom SA against l'État belge

C 55/16                EN                         Official Journal of the European Union                                         8.3.2003
Pleas in law and main arguments                                                 (b) has offered them for sale in the trademark owner’s
                                                                                      own shops or those of a related company within the
                                                                                      common market but a sale of the goods has not
The Republic of Austria neither transposed the principle of                           taken place?
priority contained in Article 3(1) of Directive 75/439/EEC
in the version contained in Directive 87/101/EEC ( 2) not
demonstrated that such priority was precluded by technical,               2.    If goods have been put on the market under one of the
financial or organisational constraints.                                        above alternatives and exhaustion of the trademark right
                                                                                thereby occurs without there having been a sale of the
                                                                                goods, can a trademark owner interrupt exhaustion by
Priority in favour of ‘regeneration’ or (in Austrian terminology)               returning the goods to a warehouse?
‘recycling’ as opposed to ‘combustion’ or (in Austrian termin-
ology) ‘energy conversion’ cannot be inferred from the Austri-            3.    Are goods to be regarded as having been put on the
an legal provisions. Rather those provisions refer to recycling                 market by virtue of the fact that they have been sold by
and energy conversion in the same context without according                     the trademark owner to another company in the internal
priority to one of the two methods of treatment over the                        market, if, upon the sale, the trademark owner imposed a
other.                                                                          restriction on the buyer under which he was not entitled
                                                                                to resell the goods in the common market?
The arguments relied on by the Republic of Austria in order to
substantiate the existence of preclusive technical, financial and         4.    Is the answer to question 3 affected if the trademark
organisational constraints, that is to say that owing to the                    owner, upon selling the consignment to which the goods
small quantity of waste oil regeneration in Austria is unecon-                  belonged, gave the buyer permission to resell a small part
omical; that for ecological reasons no clear advantages is to be                of the goods in the common market but did not specify
gained from recycling; that there is no reprocessing plant                      the individual goods to which that permission applied?
in Austria for waste oils, are in the Commission’s view
unconvincing since they merely seek to perpetuate in Austria
the existing status quo and do not indicate that any endeavours
have been made in order to meet the directive’s requirements.
( 1) OJ 1975 L 194, p. 31.
( 2) OJ 1987 L 42, p. 43.
                                                                          Reference for a preliminary ruling by the Conseil d’État,
                                                                          section d’administration (Belgium) by judgment of that
                                                                          Court of 27 December 2002 in the case of Fabricom SA
                                                                                                 against l’État belge
Reference for a preliminary ruling by the Hovrätten över                                           (Case C-21/03)
Skåne och Blekinge by order of that Court of 19 December
2002 in the case of Peak Holding AB against Axolin-
Elinor AB (formerly Handelskompaniet Factory Outlet i                                              (2003/C 55/29)
                        Löddeköpinge AB)
                          (Case C-16/03)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Conseil d’État,
                          (2003/C 55/28)
                                                                          section d’administration (Council of State, administrative sec-
                                                                          tion) (Belgium) of 27 December 2002, received at the Court
                                                                          Registry on 22 January 2003, for a preliminary ruling in the
Reference has been made to the Court of Justice of the                    case of Fabricom SA against l’État belge (Belgian State) on the
European Communities by order of the Hovrätten över Skåne                 following questions:
och Blekinge (Court of Appeal for Skåne and Blekinge) of
19 December 2002, received at the Court Registry on 15 Janu-              1.    Do Council Directive 93/38/EEC of 14 June 1993
ary 2003, for a preliminary ruling in the case of Peak Holding                  coordinating the procurement procedures of entities
AB against Axolin-Elinor AB (formerly Handelskompaniet                          operating in the water, energy, transport and telecom-
Factory Outlet i Löddeköpinge AB) on the following questions:                   munications sectors ( 1), and in particular Article 4(2)
                                                                                thereof, and Directive 98/4/EC ( 2) of 16 February 1998 of
1.    Are goods to be regarded as having been put on the                        the European Parliament and of the Council amending
      market by virtue of the fact that the trademark owner:                    Directive 93/38/EEC, in conjunction with the principle of
                                                                                proportionality, freedom of trade and industry and
      (a)   has imported them into the common market and                        respect for the law of property guaranteed in particular
            paid import duty on them, with the intention that                   by the protocol of 20 March 1992 to the Convention for
            they be sold there?                                                 the Protection of Human rights and Fundamental
 ---pagebreak--- 8.3.2003               EN                        Official Journal of the European Union                                         C 55/17
      Freedoms, preclude the barring of the submission of an                     Removal from the register of Case C-304/99 ( 1)
      application to participate in or a tender for a public
      contract for works, supplies or services by any person
      who has been responsible for research, testing, study or                                    (2003/C 55/31)
      development in respect of those works, supplies or
      services where that person has not been given an
      opportunity to prove that, in the circumstances of the
      case, the experience he has acquired could not distort             By order of 15 November 2002 the President of the Court of
      competition?                                                       Justice of the European Communities ordered the removal
                                                                         from the register of Case C-304/99 (Reference for a preliminary
2.    Would the answer to the preceding question be different if         ruling by the Tribunale di Brescia): F. Apollonio & C. SpA v
      the abovementioned directives, considered in conjunction           Ministero delle Finanze.
      with the same principle, freedom and law, were interpret-
      ed as covering only private undertakings or undertakings
      which had supplied gratuitous services?                            (1 ) OJ C 333 of 20.11.1999.
3.    Can Council Directive 92/13/EEC of 25 February 1992
      coordinating the laws, regulations and administrative
      provisions relating to the application of Community rules
      on the procurement procedures of entities operating in
      the water, energy, transport and telecommunications
      sectors (3), and in particular Articles 1 and 2 thereof, be
      interpreted as meaning that a contracting entity may
                                                                                 Removal from the register of Case C-305/99 ( 1)
      exclude, up to the end of the process of evaluation of
      the tenders, from participation in the procedure or
      submission of a tender, an undertaking connected to any                                     (2003/C 55/32)
      person who has been responsible for the research, testing,
      study or development in respect of the works, supplies or
      services, although when questioned in that regard by the
      contracting authority that undertaking declares that it has
      gained therefrom no unfair advantage of a nature such as           By order of 15 November 2002 the President of the Court of
      to distort the normal conditions of competition?                   Justice of the European Communities ordered the removal
                                                                         from the register of Case C-305/99 (Reference for a preliminary
                                                                         ruling by the Tribunale di Brescia): Leglerdata SpA v Ministero
                                                                         delle Finanze.
( 1) OJ L 199 of 09.08.1993, p. 84.
( 2) OJ L 101 of 01.04.1998, p. 1.
( 3) OJ L 76 of 23.03.1992, p. 14.
                                                                         (1 ) OJ C 333 of 20.11.1999.
        Removal from the register of Case C-303/99 ( 1)
                                                                                 Removal from the register of Case C-358/99 ( 1)
                          (2003/C 55/30)                                                          (2003/C 55/33)
By order of 15 November 2002 the President of the Court of               By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                  Justice of the European Communities ordered the removal
from the register of Case C-303/99 (Reference for a preliminary          from the register of Case C-358/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Markfactor SpA v Ministero          ruling by the Tribunale di Brescia): Tecnologie Meccaniche
delle Finanze.                                                           Avanzate Srl (TMA) v Ministero delle Finanze.
( 1) OJ C 333 of 20.11.1999.                                             (1 ) OJ C 352 of 4.12.1999.