CELEX: C2001/150/17
Language: en
Date: 2001-05-19 00:00:00
Title: Case C-57/01: Reference for a preliminary ruling by the Dioikitiko Efeteio (Three-member Chamber C) Athens by order of that court of 26 October 2000 in the case of Makedoniko Metro v Greek State

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.