CELEX: C1996/388/14
Language: en
Date: 1996-12-21 00:00:00
Title: Reference for a preliminary ruling from the Gerechtshof te Arnhem by judgment of that Court of 29 October 1996 in the case of Municipality of Arnhem and Municipality of Rheden v. BFI Holding BV (Case C-360/96)

21 . 12 . 96           I EN                 Official Journal of the European Communities                                 No C 388 /7
1 . Is Article 7 ( 1 ) of the first Council Directive 89/104/          2 . If the answer to Question 1 is that the distinction to
     EEC of 21 December 1988 to approximate the laws of                    be drawn is that set out in ( i ):
     the Member States relating to trade marks ('the Trade
     Marks Directive ') ( J ) to be interpreted as meaning that            ( a ) is the phrase 'needs in the general interest' to be
     the trade mark entitles its proprietor to prohibit a                        understood as meaning that there can be no
     third party from using the mark for goods which have                        question of meeting needs in the general interest
     been put on the market under that mark in a State                           where private undertakings meet such needs ?
     which is not a Contracting State ?                                    ( b ) if so, is the phrase 'needs having an industrial or
                                                                                 commercial     character'     to be understood    as
2 . May the proprietor of the trade mark on the basis of
     Article 7 ( 1 ) of the Trade Marks Directive alone seek
                                                                                 meaning that needs having an industrial or
                                                                                 commercial character are met whenever private
     an order that the third party cease using the trade
                                                                                 undertakings meet such needs ?
     mark for goods which have been put on the market
     under that mark in a State which is not a Contracting
     State ?                                                           3 . If the answer to the first question is that the
                                                                           distinction to be drawn is that set out in ( ii ), is the
(') OJ No L 40, 11 . 2 . 1989, p . 1 .
                                                                           difference between ' needs in the general interest not
                                                                           having an industrial or commercial character' and
                                                                           'needs in the general interest having an industrial or
                                                                           commercial character' to be determined according to
                                                                           whether ( competing ) private undertakings meet such
                                                                           needs or not ?
Reference for a preliminary ruling from the Gerechtshof te
Arnhem by judgment of that Court of 29 October 1996 in
the case of Municipality of Arnhem and Municipality of                 4. Is the requirement that the body must be established
                     Rheden v. BFI Holding BV                              'for the specific purpose of meeting needs in the
                                                                           general interest, not having an industrial or
                          ( Case C-360/96 )
                                                                           commercial character' to be interpreted as meaning
                             96/C 388/ 14 )                                that such a 'specific purpose' can exist only where the
                                                                           body was established exclusively to meet such needs ?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Gerechtshof                  5 . If not, must a body meet needs in the general interest,
te Arnhem ( Regional Court of Appeal, Arnhem ) of                          not having an industrial or commercial character,
29 October 1996, which was received at the Court                           almost exclusively, substantially, preponderantly or to
Registry on 5 November 1996, for a preliminary ruling in                   some other degree in order to be or remain able to
the case of Municipality of Arnhem and Municipality of                     meet the requirement that it must be established for
Rheden v. BFI Holding BV, on the following questions :                     the specific purpose of meeting such needs ?
1 . For the purposes of interpreting Article 6 of Council              6 . Does it make any difference to the answers to
     Directive 92/50/EEC of 18 June 1992 relating to the                   Questions 1 to 5 whether the needs in the general
     coordination of procedures for the award of public                    interest, not having an industrial or commercial
     service contracts ( l ) ('the Directive'), is the first indent
                                                                           character, which the body was set up to meet, derive
     of the second subparagraph of Article 1 ( b ) of the                  from legislation in the formal sense, from
     Directive, which specifies that ' body governed by                    administrative provisions, from acts of the
     public law means any body [. . .] established for the                 administration or otherwise ?
     specific purpose of meeting needs in the general
     interest, not having an industrial or commercial                  7. Does it make any difference to the answer to
     character', to be interpreted as distinguishing:                      Question 4 if responsibility for the commercial
     ( i ) between needs in the general interest and needs                 activities is entrusted to a separate legal entity forming
            having an industrial or commercial character, or               part of a single group or concern within which
     ( ii ) between needs in the general interest not having an            activities meeting needs in the general interest are also
            industrial or commercial character and needs in                carried out ?
            the general interest having an industrial or
            commercial character ?                                     (!) OJ No L 209, 24 . 7 . 1992, p . 1 .