CELEX: C2002/289/21
Language: en
Date: 2002-11-23 00:00:00
Title: Case C-340/02: Action brought on 24 September 2002 by Commission of the European Communities against French Republic

C 289/12                EN                     Official Journal of the European Communities                                     23.11.2002
      enables the relevant class of persons to distinguish the            at the Court Registry on 23 September 2002, for a preliminary
      services in question from services of another business              ruling in the proceedings between Saatgut-Treuhandverwal-
      source. Instead the Court based its view that the sign in           tungs-GmbH and Brangewitz GmbH on the following ques-
      question fell within the scope of Article 7(1)(b) of the            tions concerning the interpretation of Article 14(3), sixth
      Regulation on the fact that it did not satisfy criteria for         indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
      protection governed by other provisions. It interprets              1994 on Community Plant variety rights (OJ 1994 L 227,
      Article 7(1)(b) as a catch-all provision for cases in which         p. 1) in conjunction with Article 9 of Commission Regulation
      the trade marks applied for, despite having descriptive             (EC) No 1768/95 ( 2) of 24 July 1995:
      character, do not fall within the scope of the grounds
      for rejecting protection under Article 7(1)(c) of the               1.     Are the abovementioned provisions to be interpreted as
      Regulation.                                                                meaning that the holder of a variety protected under
                                                                                 Regulation No 2100/94 can request the supplier of
      The splitting by the Court of the trade mark ‘SAT.2’ into                  processing services or the processor to provide the
      its component parts does not reflect the view and
                                                                                 information specified in those provisions, regardless of
      approach adopted by consumers. The distinctive charac-                     whether there is any evidence that the supplier of
      ter or lack of distinctive character of the trade mark must                processsing services has supplied a processing service in
      to some degree be apparent ‘at first sight’.                               respect of the protected variety concerned or that the
                                                                                 processor has processed the protected variety concerned?
(in the alternative)                                                      2.     If there must be evidence for the factual situation referred
                                                                                 to in Question 1:
—     Infringement of the principle of equal treatment: it may
                                                                                 Must the supplier of processing services or processor
      be correct that a person cannot rely on a failure to apply
                                                                                 provide information pursuant to Article 14(3), sixth
      the law which has benefitted another person. In the
                                                                                 indent, of Regulation No 2100/94 in conjunction with
      present case, however, the appellant did not point to
                                                                                 Article 9 of Regulation No 1768/95 with regard to all the
      wrongly-decided isolated cases, but to the Office’s clearly
                                                                                 farmers to whom he has supplied the processing service
      recognisable general practice of allowing in principle
                                                                                 in respect of the protected variety concerned and/or for
      applications for registration of trademarks consisting of a
                                                                                 whom he has carried out the processing of the protected
      combination of numbers and descriptive indications/
                                                                                 variety concerned, or only with regard to those farmers
      abbreviations. The appellant refers in this connection in
                                                                                 in respect of whom the holder has evidence that the
      particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
                                                                                 supplier of processing services has supplied processing
      Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
                                                                                 services in respect of the protected variety concerned
      4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
                                                                                 and/or the processor has carried out the processing of the
      920 157) and ‘B-MAIL’ (000 896 399).
                                                                                 protected variety concerned?
( 1) OJ 2002 C 202, p. 23.
                                                                          (1 ) OJ L 227, p. 1.
( 2) OJ 2001 C 4, p. 5.
                                                                          (2 ) OJ L 173, p. 14.
Reference for a preliminary ruling by the Landgericht                     Action brought on 24 September 2002 by Commission
Düsseldorf by order of that Court of 17 September 2002                       of the European Communities against French Republic
in the proceedings between Saatgut-Treuhandverwal-
             tungs-GmbH and Brangewitz GmbH
                                                                                                   (Case C-340/02)
                         (Case C-336/02)
                                                                                                   (2002/C 289/21)
                         (2002/C 289/20)
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 24 Septem-
Reference has been made to the Court of Justice of the                    ber 2002 by the Commission of the European Communities,
European Communities by order of the Landgericht Düsseldorf               represented by M. Nolin, acting as Agent, with an address for
(Regional Court, Düsseldorf) of 17 September 2002, received               service in Luxembourg.
 ---pagebreak--- 23.11.2002                EN                   Official Journal of the European Communities                                      C 289/13
The applicant claims that the Court should:                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                          27 September 2002, received at the Court Registry on
—      declare that, when the municipal community of Le Mans              30 September 2002, for a preliminary ruling in the proceed-
       awarded a contract with the purpose of assisting the               ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
       person responsible for the Chauvinière sewage treatment            3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
       works to carry out a study into it without previously              the following questions:
       publishing a tender notice in the Official Journal of the
       European Communities, the French Republic failed to
       fulfil its obligations under Directive 92/50/EEC ( 1) and in
       particular Article 15(2) thereof;                                  (1) Is a scheme such as that under consideration, in which
                                                                               levies are imposed to finance collective advertising cam-
                                                                               paigns, to be regarded as (part of a measure of) aid within
—      order the French Republic to pay the costs.
                                                                               the meaning of Article 92(1) of the EC Treaty, and must
                                                                               the plans to implement it be notified to the Commission
                                                                               under Article 93(3) of the EC Treaty? Does that apply
                                                                               only to the benefit derived from the scheme, in the form
Pleas in law and main arguments                                                of the organisation and provision of collective advertising
                                                                               campaigns, or does it also apply to the method of
                                                                               financing it, such as a bye-law instituting levies and/or
                                                                               the decisions imposing levies based thereon? Does it
The Commission takes the view that the tender for the study
                                                                               make any difference whether the collective advertising
into the works which concerned services other than those                       campaigns are offered to (undertakings in) the same
involved in the call for proposals launched by the notice                      business sector as that on which the levy decisions in
published in the Official Journal of the European Communities                  question are imposed? If so, what difference does it make?
on 30 November 1996 should have been published and                             Is it relevant in that connection whether the costs incurred
should have been the subject of a new tender in compliance
                                                                               by the public body are offset in full by the earmarked
with the obligations laid down by Directive 92/50/EEC. The                     levies payable by the undertakings benefiting from the
direct award of that contract to the successful tenderer of the                service, so that the benefit derived costs the public
call for proposals was unauthorised. Nor can it be justified on                authorities, on balance, nothing? Is it relevant in that
the basis of a reference in the notice of 30 November 1996                     connection whether the benefit from the collective adver-
according to which ‘the tenderer whose solution is accepted in
                                                                               tising campaigns is distributed more or less evenly across
the context of the competition for proposals may be invited to                 the field of activity concerned and whether the individual
become involved in the implementation of his idea as part of                   establishments within the branch are also deemed, on
a study intended to ... assist the person responsible for the
                                                                               balance, to have derived a more or less equal benefit or
works’.                                                                        profit from those campaigns?
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
     coordination of procedures for the award of public service
     contracts (JO L 209 of 24.7.1992, p. 1).                             (2) Does the obligation to notify under Article 93(3) apply
                                                                               to any aid or only to aid which satisfies the definition in
                                                                               Article 92(1)? In order to avoid its obligation to notify,
                                                                               does a Member State have free discretion to determine
                                                                               whether aid satisfies the definition in Article 92(1)? If so,
                                                                               how much discretion? And to what extent can such
                                                                               free discretion affect the obligation to notify under
                                                                               Article 93(3)? Or is it the case that the obligation to
                                                                               notify ceases to apply only if it is beyond reasonable
                                                                               doubt that no aid is involved?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 27 September
2002 in the proceedings between 1. Pearle B.V., 2. Hans
Prijs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and                  (3) If the national court concludes that aid within the
                   Hoofdbedrijfschap Ambachten                                 meaning of Article 92(1) is involved, must it then
                                                                               consider the ‘de minimis’ rule, as formulated by the
                                                                               Commission in a notice published in OJ 1992 C 213 (and
                           (Case C-345/02)
                                                                               subsequently in OJ 1996 C 68), when assessing whether
                                                                               the measure in question is to be regarded as aid which
                           (2002/C 289/22)                                     ought to have been notified to the Commission under
                                                                               Article 93(3)? If so, must that ‘de minimis’ rule also be
                                                                               applied with retroactive effect to aid which was granted
                                                                               before the publication of the rule, and how must that ‘de
                                                                               minimis’ rule be applied to aid such as annual collective
Reference has been made to the Court of Justice of the                         advertising campaigns which benefit an entire branch of
European Communities by judgment of the Hoge Raad                              industry?