CELEX: C1996/388/13
Language: en
Date: 1996-12-21 00:00:00
Title: Reference for a preliminary ruling from the Oberster Gerichtshof, Austria, by order of that Court of 15 October 1996 in the case of Silhouette International Schmied Gesellschaft mbH & Co KG v. Hartlauer Handelsgesellschaft mbH (Case C-355/96)

No C 388/6                L_EN                 Official Journal of the European Communities                                         21 . 12 . 96
Pleas in law and main arguments adduced in support:                       Action brought on 29 October 1996 by the Commission
                                                                          of the European Communities against the Italian Republic
There are two main issues of contention, of which one is                                             Case C-354/96 )
procedural and the other substantive . The procedural issue                                            96/C 388 / 12
concerns the relationship between the procedures laid
down in Article 169 of the EC Treaty and those provided
for in Directive 89/665/EEC ( 3 ) ( the 'Remedies Directive').
                                                                          An action against the Italian Republic was brought before
The substantive issue concerns the question of the                        the Court of Justice of the European Communities on
interpretation of the expression 'contracting authority'                  29 October 1996 by the Commission of the European
contained in Article 9 of Directive 77/62/EEC as amended
                                                                          Communities, represented by Dimitrios Gouloussis, Legal
at the relevant time ( the ' Supplies Directive').                        Adviser, and Laura Pignataro, of its Legal Service, acting
                                                                          as Agents, with an address for service in Luxembourg at
— The Remedies Directive and Article 169 of the EC                        the office of Carlos Gomez de la Cruz, Wagner Centre,
       Treaty                                                             Kirchberg.
       The Commission accepts that since, unbeknown to it,                The applicant claims that the Court should:
       the contract had already been awarded on 30 May
       prior to the Commission 's communication under
       Article 3 of the Remedies Directive, proceedings under             1 . declare that, by failing to adopt and/or, in any event,
       that Article could not be pursued. The question,                        notify the laws, regulations or administrative
       therefore * of the effect of the national judicial                      provisions necessary to comply with Council Directive
        proceedings is no longer relevant. However, the                        91 /674/EEC f 1 ) of 19 December 1991 on the annual
        Commission does not accept that it is thereby                          accounts    and    consolidated        accounts   of insurance
        prevented from continuing proceedings under                            undertakings, the Italian Republic has failed to fulfil
        Article 169 of the EC Treaty or that such proceedings                  its obligations under that Directive and the EC Treaty;
        would be in any way ' inappropriate'.
                                                                          2 . order the Italian Republic to pay the costs.
— Contracting authority
                                                                          Pleas in law and main arguments adduced in support:
        Paragraphs 2 and 4 to 9 of Article 9 of Directive 77/
        62/EEC as amended ( the relevant Directive at the time
        of the award of the contract ) provides that                      Under Article 189 of the EC Treaty, according to which a
        'contracting authorities' who wish to award a public              directive is to be binding, as to the result to be achieved,
        supply contract shall make known their intention by               upon each Member State to which it is addressed,
        means of a notice to be published in the Official                 Member States are required to observe the time limits laid
       Journal of the European Communities.                               down in directives for their transposition. That time limit
                                                                          expired on 1 January 1994 without the Italian Republic
                                                                          having brought into force the necessary provisions in
        From the correspondence between the Commission                    order to comply with the Directive referred to in the
        and Ireland it appears that the Irish Government                  Commission's application.
        accepts that the contract in question is a public supply
        contract for the purposes of the Directive, but that it
        disputes that Coillte Teoranta is a contracting                    (') OJ No L 374 , 31 . 12 . 1991 , p . 7 .
        authority within the meaning of the Directive .
        Having examined the Forestry Act 1988 as well as the
        memorandum and articles of association of Coillte
        Teoranta , which set out its objects and internal rules,          Reference for a preliminary ruling from the Oberster
        the Commission considers that there are a number of                Gerichtshof, Austria, by order of that Court of 15 October
        provisions which confirm that Coillte Teoranta is a                1996 in the case of Silhouette International Schmied
        'contracting authority' for the purposes of the                    Gesellschaft     mbH          &       Co     KG     v.   Hartlauer
        Directive .                                                                           Handelsgesellschaft mbH
                                                                                                    ( Case C-355/96 )
 ( i ) OJ No L 13 , 15 . 1 . 1977, p. 1 .
 ( 2 ) Council Directive 88/295/EEC of 22 March 1988 amending                                         ( 96/C 388/ 13 )
       Directive 77/62/EEC relating to the coordination of
       procedures on the award of public supply contracts and
       repealing certain provisions of Directive 80/767/EEC ( OJ No        Reference has been made to the Court of Justice of the
       L 127, 20 . 5 . 1988 , p. 1 ).                                      European Communities by an order of the Oberster
 ( 3 ) Council Directive 89/665/EEC of 21 December 1989 on the             Gerichtshof ( Supreme Court ), Austria, of 15 October
       coordination of the laws, regulations and administrative
       provisions relating to the application of review procedures to
                                                                           1996, which was received at the Court Registry on
       the award of public supply and public work contracts ( OJ No        30 October 1996, for a preliminary ruling in the case of
                                                                           Silhouette International Schmied Gesellschaft mbH & Co
       L 395 , 30 . 12 . 1989 , p. 33 ).
                                                                           KG v. Hartlauer Handelsgesellschaft mbH on                         the
                                                                           following questions :
 ---pagebreak--- 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 .