CELEX: C2002/003/22
Language: en
Date: 2002-01-05 00:00:00
Title: Case C-408/01: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 12 October 2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V. against FITNESS WORLD TRADING Ltd

5.1.2002               EN                      Official Journal of the European Communities                                         C 3/15
Reference for a preliminary ruling by the Arbeitsgericht                  3.   Is Article 6 of Directive 93/104/EC in itself unconditional
Lörrach by orders of 26 September 2001 in the cases of                         and sufficiently precise to be capable of being relied on
Bernhard Pfeiffer, Wilhelm Roith, Albert Süss, Michael                         by individuals before national courts where the State has
Winter, Klaus Nestvogel, Roswitha Zeller and Matthias                          not properly transposed the directive into national law?
Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut
                               e.V.
                                                                          (1) OJ L 307, p. 18.
                 (Cases C-397/01 to C-403/01)                             (2) OJ L 183, p. 1.
                          (2002/C 3/21)
Reference has been made to the Court of Justice of the
European Communities by orders of 26 September 2001 of
the Arbeitsgericht Lörrach (Labour Court) Lörrach, which were
received at the Court Registry on 12 October 2001 in the                  Reference for a preliminary ruling by the Hoge Raad der
cases of Bernhard Pfeiffer (C-397/01), Wilhelm Roith                      Nederlanden by judgment of that court of 12 October
(C-398/01), Albert Süss (C-399/01), Michael Winter                        2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS
(C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller                    BENELUX B.V. against FITNESS WORLD TRADING Ltd
(C-402/01) and Matthias Döbele (C-403/01) v Deutsches
Rotes Kreuz, Kreisverband Waldshut e.V (German Red Cross,
Waldshut District Association) for a preliminary ruling on the                                    (Case C-408/01)
following questions:
                                                                                                    (2002/C 3/22)
1(a) Is the reference in Article 1(3) of Council Directive
     93/104/EC (1) of 23 November 1993 concerning certain
     aspects of the organisation of working time to Article 2(2)
     of Council Directive 89/391/EEC (2) of 12 June 1989 on
     the introduction of measures to encourage improvements
     in the safety and health of workers at work, under which             Reference has been made to the Court of Justice of the
     the directives are not applicable where characteristics              European Communities by judgment of the Hoge Raad der
     peculiar to certain specific activities in the civil protection      Nederlanden of 12 October 2001, which was received at the
     services inevitably conflict with their application, to be           Court Registry on 15 October 2001, for a preliminary ruling
     construed as meaning that the plaintiff’s activity as a              in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V.
     rescue worker is caught by this exclusion?                           against FITNESS WORLD TRADING Ltd on the following
                                                                          questions:
1(b) Is the concept of road transport in Article 1(3) of
     Directive 93/104/EC to be construed as meaning that                  1.   (a)   Must Article 5(2) of the Directive be interpreted as
     only those driving activities in which by their nature great                    meaning that, under a national law implementing
     distances are covered and, consequently, working times                          that provision, the proprietor of a trade mark which
     cannot be fixed owing to the unforeseeability of any                            is well known in the Member State concerned may
     difficulties are excluded from the scope of the directive,                      also oppose the use of the trade mark or a sign
     or is road transport within the meaning of this provision                       similar to it, in the manner and circumstances
     also to be taken to mean the activity of land-based rescue                      referred to therein, in relation to goods or services
     services, which comprises at least in part the driving of                       which are identical with or similar to those for
     rescue vehicles and attendance on patients during the                           which the trade mark is registered?
     journey?
                                                                               (b) If the answer to Question 1(a) is in the negative:
2.   In view of the judgment in Case C-303/98 Simap [2000]                           where Article 5(2) of the Directive is implemented
     ECR I-0000, paragraphs 73 and 74, is Article 18(1)(b)(i)                        in a national law, must the concept of ‘likelihood of
     of Directive 93/104/EC to be construed as meaning that                          confusion’ referred to in Article 5(1)(b) of the
     consent given individually by a worker must expressly                           Directive be interpreted as meaning that there
     refer to the extension of working time to more than                             exists such a likelihood if a person other than the
     48 hours per week, or may such consent also reside in                           proprietor of the trade mark uses a well-known
     the worker’s agreeing with the employer, in the contract                        trade mark or a sign similar to it, in the manner and
     of employment, that working conditions are to be                                circumstances referred to in Article 5(2) of the
     governed by a collective agreement which itself allows                          Directive, in relation to goods or services which are
     working time to be extended to more than 48 hours on                            identical with or similar to those for which the trade
     average?                                                                        mark is registered?
 ---pagebreak--- C 3/16                EN                    Official Journal of the European Communities                                       5.1.2002
2.   If the answer to Question 1(a) is in the affirmative:             3.    Is the material outlay (in particular in regard to costs) in
                                                                             which clients who have hitherto been supplied with the
                                                                             product of the undertaking having a dominant market
     (a)   Must the question concerning the similarity between               position would be involved if they were in future to go
           the trade mark and the sign in such a case be                     over to purchasing the product of a competing undertak-
           assessed on the basis of a criterion other than that              ing which does not make use of the data bank protected
           of (direct or indirect) confusion as to origin, and if            by copyright relevant to the question of abusive conduct
           so, according to what criterion?                                  by an undertaking with a dominant position on the
                                                                             market?
     (b) If the sign alleged to be an infringement in such a
           case is viewed purely as an embellishment by the
           relevant section of the public, what importance must
           be attached to that circumstance in connection with
           the question concerning the similarity between the
           trade mark and the sign?
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Austria) by order of 25 September 2001 in the
                                                                       case of Traunfellner GmbH v Österreichische Autobah-
                                                                          nen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)
Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 12 July 2001                                       (Case C-421/01)
in the case of IMS Health GmbH & Co. OHG v NDC
                      Health GmbH & Co
                                                                                                (2002/C 3/24)
                        (Case C-418/01)
                          (2002/C 3/23)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 25 September 2001 by
                                                                       the Bundesvergabeamt (Austrian Federal Procurement Office),
                                                                       which was received at the Court Registry on 24 October 2001,
Reference has been made to the Court of Justice of the                 for a preliminary ruling in the case of Traunfellner GmbH v
European Communities by order of the Landgericht Frankfurt             Österreichische Autobahnen- und Schnellstrassen-Finan-
am Main (Regional Court) of 12 July 2001, which was received           zierungs-AG (ÖSAG) on the following questions:
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions:                           Question 1
                                                                       Is an alternative tender that consists in proposing an asphalt
1.   Is Article 82 EC to be interpreted as meaning that there is       surface instead of overlaying the carriageway with concrete as
     abusive conduct by an undertaking with a dominant                 specified in the tender document a ‘variant’ within the meaning
     position on the market where it refuses to grant a licence        of the first paragraph of Article 19 of Directive 93/37/EEC (1)?
     agreement for the use of a data bank protected by
     copyright to an undertaking which seeks access to the
     same geographical and actual market if the participants           Question 2
     on the other side of the market, that is to say potential
     clients, reject any product which does not make use of
     the data bank protected by copyright because their set-up         Can a criterion established in national legislation to determine
     relies on products manufactured on the basis of that data         the admissibility of the acceptance of a ‘variant’ within the
     bank?                                                             meaning of the first paragraph of Article 19 of Directive
                                                                       93/37/EEC, whereby ‘the performance of qualitatively equiva-
                                                                       lent work is ensured’ by the variant, properly be regarded as a
2.   Is the extent to which an undertaking with a dominant             ‘minimum specification’ required and stated by the contracting
     position on the market has involved persons from the              authority in accordance with the first and second paragraphs
     other side of the market in the development of the data           of Article 19 of Directive 93/37/EEC, if the tender document
     bank protected by copyright relevant to the question of           refers only to the national provision and does not specify the
     abusive conduct by that undertaking?                              comparative parameters to be used to assess ‘equivalence’?