CELEX: C2001/150/18
Language: en
Date: 2001-05-19 00:00:00
Title: Case C-83/01 P: Appeal brought on 19 February 2001 by Chronopost SA against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste

19.5.2001              EN                     Official Journal of the European Communities                                         C 150/9
1.   In determining whether a three-dimensional trade mark               Appeal brought on 19 February 2001 by Chronopost SA
     which depicts the shape of a product has distinctive                against the judgment delivered on 14 December 2000 by
     character within the meaning of Article 3(1)(b) of the              the Fourth Chamber (Extended Composition) of the Court
     above directive is there a stricter test for distinctive            of First Instance of the European Communities in Case
     character than in the case of other forms of trade marks?           T-613/97 between Union Française de l’Express (UFEX),
                                                                         DHL International, Federal Express International (France)
                                                                         and CRIE and the Commission of the European Communi-
2.   In the case of three-dimensional trade marks which depict           ties, supported by the French Republic, Chronopost SA
     the shape of the product, does Article 3(1)(c) of the                                          and La Poste
     Directive have any significance independently of
     Article 3(1)(e)? If so, when considering Article 3(1)(c) —
     or alternatively Article 3(1)(e) — must regard be had to                                     (Case C-83/01 P)
     the interest of the trade in having the shape of the product
     available for use, so that registration is, at least in                                      (2001/C 150/18)
     principle, ruled out and is possible as a rule only in the
     case of trade marks which meet the requirements of
                                                                         An appeal against the judgment delivered on 14 December
     Article 3(3), first sentence, of the directive?
                                                                         2000 by the Fourth Chamber (Extended Composition) of the
                                                                         Court of First Instance of the European Communities in Case
                                                                         T-613/97 between Union Française de l’Express (UFEX), DHL
(1) OJ 1989 L 40, p. 1.                                                  International, Federal Express International (France) and CRIE
                                                                         and the Commission of the European Communities, supported
                                                                         by the French Republic, Chronopost SA and La Poste, was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 19 February 2001 by Chronopost SA, represented by
                                                                         V. Bouaziz Torron and D. Berlin, Avocats, with an address for
                                                                         service in Luxembourg.
                                                                         The appellant claims that the Court should:
                                                                         —     quash the decision of the Court of First Instance of
Reference for a preliminary ruling by the Dioikitiko                           14 December 2000 in so far as it annuls Article 1 of
Efeteio (Three-member Chamber C) Athens by order of                            Decision 98/365/EC on the ground that the Commission
that court of 26 October 2000 in the case of Makedoniko                        should have considered whether, on account of La Poste’s
                       Metro v Greek State                                     reserved rights, the charges applied by that undertaking
                                                                               for services to its subsidiary were based on costs lower
                                                                               than those which a private operator with no reserved
                          (Case C-57/01)                                       rights would have had to bear;
                                                                         —     declare that there is no need to refer the case back to the
                         (2001/C 150/17)                                       Court of First Instance; and give final judgment in the
                                                                               matter, in accordance with the first paragraph of
                                                                               Article 54 of the Statute of the Court of Justice;
Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio                  —     in those circumstances, and in so far as the Court of First
(Administrative Court of Appeal), Athens, of 26 October 2000                   Instance rejected all the other pleas in law raised by UFEX
which was received at the Court Registry on 9 February 2001,                   in support of its action for annulment, declare that the
for a preliminary ruling in the case of Makedoniko Metro v                     action brought by UFEX contesting Decision 98/365/EC
Greek State on the following questions:                                        was unfounded;
                                                                         —     in so far as, under Article 69(2) of the Rules of Procedure,
‘Must a change in the composition of an association participat-                the unsuccessful party is to be ordered to pay the costs if
ing in procedures for the award of a public-works contract,                    they have been applied for in the successful party’s
which occurs after submission of tenders and selection of the                  pleadings, and in so far as the pleadings submitted by
association as the provisional contractor and is tacitly accepted              UFEX before the Court of First Instance in support of its
by the awarding authority, be interpreted in such a way as to                  action for annulment must be rejected, UFEX and the
result in the loss of that association’s right to participate in the           other applicants must be regarded as having been unsuc-
procedure and, by extension, also of its right to, or interest in,             cessful in their pleadings, order UFEX and the other
the award of the contract for execution of the works? Is such                  applicants to pay the costs;
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’                                    —     in the alternative, refer the case back to the Court of First
                                                                               Instance for judgment and order UFEX and the other
                                                                               applicants to bear the costs incurred by Chronopost in
                                                                               the proceedings both before the Court of First Instance
                                                                               and the Court of Justice.
 ---pagebreak--- C 150/10                  EN                   Official Journal of the European Communities                                        19.5.2001
Pleas and main arguments                                                  —    Infringement of Article 88 EC
                                                                               In criticising the Commission for not considering whether
                                                                               La Poste was in receipt of aid from the French State, the
—     Infringement of Article 87 EC                                            Court of First Instance encourages the Commission to act
                                                                               in breach of the procedure set out in Article 88(2) and in
                                                                               disregard of the French Government’s right to a fair
                                                                               hearing.
      Contrary to the position maintained by the Court of First
      Instance, the existence of aid for the purposes of                       The Court of First Instance also rebukes the Commission
      Article 87 presupposes not only that an advantage be                     for failing to determine whether or not La Poste charged
      conferred on an undertaking but also that that advantage                 its subsidiary not only its total costs but also the difference
      be financed directly or indirectly through State resources.              between those and the costs which would have been
                                                                               borne by La Poste if it had been a private operator with
                                                                               no reserved market. In so doing, the Court of First
                                                                               Instance confuses procedures, out of a desire to ensure
      In holding that the Commission was under a duty to                       that the entry on to a competitive market of a subsidiary
      consider whether La Poste’s reserved rights in the ordinary              of a public undertaking is made in ‘normal’ conditions.
      mail sector enabled it to save so much on costs that its
      charges for its services did not have to be based on
      ‘normal market conditions’, the Court of First Instance is
      requiring the Commission to search for the causes of
      postulated aid, whereas the Court has consistently held
      that aid is not identified by its causes or the reasons for
      State intervention, but by its effects.
                                                                          Appeal brought on 21 February 2001 by the Commission
      Taking the criterion of the behaviour of a private investor         of the European Communities against the judgment deliv-
      or operator, the Court of First Instance applies it, not to         ered on 14 December 2000 by the Fourth Chamber of the
      the market in which the subsidiary conducts its business            Court of First Instance of the European Communitics
      and in which the services provided by the parent company            in Case T-105/99 between the Council of European
      were used, but to the quite separate market in which the            Municipalities and Regions (CEMR) and the Commission
      parent company itself operates. Then it distorts once                                of the European Communities
      again the rule set out in Article 87 EC by disregarding the
      ‘real life’ situation of public operators and contemplating
      instead the situation of private operators as it ideally                                     (Case C-87/01 P)
      should be, that is to say, it constructs a picture of an ideal
      market on which an ideal form of competition is at play.
      That approach, indirectly but inexorably, calls in question                                  (2001/C 150/19)
      the policies and measures adopted in recent years in
      connection with the opening up of sectors previously not
      exposed to competition. Ultimately, it would mean that,             An appeal against the judgment delivered on 14 December
      even through the creation of subsidiaries and with                  2000 by the Fourth Chamber of the Court of First Instance of
      due respect for the principle of transparency, public               the European Communities in Case T-105/99 between the
      undertakings would no longer be able to compete on                  Council of European Municipalities and Regions (CEMR) and
      those new markets. Also, to accept as a premiss that, in            the Commission of the European Communities was brought
      the case of the public service managed by La Poste, La              before the Court of Justice of the European Communities on
      Poste’s reserved rights constitute ‘State aid’ which enables        21 February 2001 by the Commission of the European
      it to cut operating costs and which can be passed on to             Communities, represented by P. Oliver and H.M.H. Speyart,
      its subsidiary in the form of undercharging for services,           acting as Agents, with an address for service in Luxembourg.
      implies a premature finding that La Poste receives State
      aid for discharging its public service responsibilities and
      that this must be removed so that the benefit cannot be             The appellant claims that the Court should:
      passed on to its subsidiary. That is tantamount to calling
      in question, contrary to Article 16 EC, the subsidising of
                                                                          —    set aside the judgment delivered by the Court of First
      public services; although, in any event, Article 87 EC
                                                                               Instance on 14 December 2000 in Case T-105/99 and
      should not be applied to such funding, by virtue of
                                                                               draw all the legal consequences of the setting aside of
      Article 86(2) EC. Lastly, the approach adopted by the
                                                                               that judgment;
      Court of First Instance appears at odds with the provisions
      of Article 86(1) and 82 EC which endorse a costs-based
      approach in relation to the fixing of rates for access to           —    order the applicant at first instance to pay the costs of the
      the network.                                                             present appeal.