CELEX: C2002/169/30
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-155/02: Action brought on 26 April 2002 by the Commission of the European Communities against the Republic of Austria

C 169/16                EN                   Official Journal of the European Communities                                       13.7.2002
Pleas in law and main arguments                                               in the Internal Market (Trade Marks and Designs) did not
                                                                              infringe Article 7 (1) (c) of Council Regulation (EC)
                                                                              No 40/94 of 20 December 1993 on the Community
The judgment of the Court of First Instance infringed                         trade mark (2) in adopting its decision of 28 February
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well                2000 (Case R 423/1999-2) with the exception as regards
as the ‘right to sound administration’ and the Commission’s                   goods in the categories ‘manuals and publications’;
‘general duty of supervision’, in so far as it inferred that
individuals have a right to have their complaint under                  2.    for the rest, annul the decision of the Second Board of
Article 90 of the EC Treaty (now Article 86 EC) dealt with and                Appeal of the Office for Harmonization in the Internal
a corresponding right of action. Moreover, it erroneously                     Market (Trade Marks and Designs) of 28 February 2000
inferred that complaints by individuals in the context of                     (Case R 423/1999-2);
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of           3.    order the Office for Harmonization in the Internal Market
First Instance has at any rate infringed Article 90(3). If so, and            (Trade Marks and Designs) to pay the costs both at first
in so far as it based its conclusions thereon it has also infringed           instance and on appeal.
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.                                                       Pleas in law and main arguments
(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v
                                                                        The Appellant maintains that the Court of First Instance
    Commission [2002] ECR II-0000.                                      misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
                                                                        held that the aforementioned article prevents the signs or
                                                                        indications referred to in that provision from being reserved
                                                                        to one undertaking alone because they have been registered as
                                                                        a mark and that the provision thus pursues an aim which is in
                                                                        the public interest, namely that such signs or indications may
                                                                        be freely used by all.
Appeal brought on 25 April 2002 by Streamserve Inc.                     In the Appellant’s view the criteria applied by the Court of
against the judgment delivered on 27 February 2002 by                   First Instance in the application of Article 7 (1) (c) to the facts
the Fourth Chamber of the Court of First Instance of                    of the case are too severe.
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
    Internal Market (Trade Marks and Designs) (OHIM)                    (1) OJ C 176, 24.6.2000, p. 29.
                                                                        (2) OJ L 11, 14.1.1994, p. 1.
                         (Case C-150/02 P)
                          (2002/C 169/29)
An appeal against the judgment delivered on 27 February                 Action brought on 26 April 2002 by the Commission
2002 by the Fourth Chamber of the Court of First Instance               of the European Communities against the Republic of
of the European Communities in case T-106/00 between                                                  Austria
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM), was
                                                                                                (Case C-155/02)
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented                                 (2002/C 169/30)
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.
                                                                        An action against the Republic of Austria was brought before
The Appellant claims that the Court should:                             the Court of Justice of the European Communities on 26 April
                                                                        2002 by the Commission of the European Communities,
1.    annul the judgment of the Court of First Instance of              represented by Josef Christian Schieferer, of its Legal Service,
      27 February 2002 in case T-106/00, Streamserve Inc. v.            with an address for service in Luxembourg at the office of Luis
      OHIM (‘STREAMSERVE’), in so far as it found that the              Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
      Second Board of Appeal of the Office for Harmonization            Kirchberg, Luxembourg.
 ---pagebreak--- 13.7.2002               EN                      Official Journal of the European Communities                                      C 169/17
The applicant claims that the Court should:                                Reference for a preliminary ruling by the Republic of
                                                                           Austria Oberster Gerichtshof by order of that Court of
                                                                           22 March 2002 in the case of Rieser Internationale
—     declare that by:
                                                                           Transporte GmbH against ASFINAG Autobahnen- und
                                                                                 Schnellstraßen Finanzierungs-Aktiengesellschaft
      (1) not fully transposing into Austrian law by 1 January
            1995, contrary to Article 166 of the Act of
            Accession of Austria, Sweden and Finland to the
            European Union, Council Directive 89/369/EEC of                                         (Case C-157/02)
            8 June 1989 on the prevention of air pollution from
            new municipal waste incineration plants (1) and
            Council Directive 89/429/EEC of 21 June 1989 on
                                                                                                   (2002/C 169/31)
            the reduction of air pollution from existing munici-
            pal waste-incineration plants (2), in so far as it has
            not transposed those directives as required into
            the Abfallwirtschaftsgesetz (Federal law on waste
            management), the Gewerbeordnung 1994 (Austrian
            Trade Code of 1994) and the laws of the federal
            states, or, in any event, not informing the Com-               Reference has been made to the Court of Justice of the
            mission of any such transposition, and                         European Communities by order of the Republic of Austria
                                                                           Oberster Gerichtshof (Supreme Court) of 22 March 2002,
                                                                           received at the Court Registry on 29 April 2002, for a
      (2) not correctly or not fully transposing Article 4(1) of           preliminary ruling in the case of Rieser Internationale Trans-
            Directive 89/369/EEC into the Luftreinhaltegesetz              porte GmbH against ASFINAG Autobahnen- und Schnellstraß-
            für Kesselanlagen (Law on control of air pollution             en Finanzierungs-Aktiengesellschaft on the following ques-
            from boiler plants) and the Luftreinhalteverordnung            tions:
            für Kesselanlagen (Decree on control of air pollution
            from boiler plants), the Republic of Austria has
            failed to fulfil its obligations under those directives;
                                                                           1.1.    Is the effect of the case-law of the Court of Justice on
—     order the Republic of Austria to pay the costs.                      the ‘functional concept of the State’ that, when concluding
                                                                           contracts with road users, the defendant is required to observe
                                                                           the directly effective provisions of Council Directive 93/89/
                                                                           EEC of 25 October 1993(1) on the application by Member
                                                                           States of taxes on certain vehicles used for the carriage of
Pleas in law and main arguments                                            goods by road and tolls and charges for the use of certain
                                                                           infrastructures and of Directive 1999/62/EC of the European
—     Incomplete transposition of Directives 89/369/EEC and                Parliament and of the Council of 17 June 1999 (2) on the
      89/429/EEC:                                                          charging of heavy goods vehicles for the use of certain
                                                                           infrastructures, such that the defendant cannot charge a higher
                                                                           toll than those provisions allow?
      The Republic of Austria does not dispute that, with the
      exception of the legislative provisions notified to the
      Commission as transposing those directives (the Law and
      Decree on control of air pollution from boiler plants), the          1.2.    If question 1.1 is answered in the affirmative:
      directives have not been transposed into Austrian law
      and, in particular, they have not been transposed into the
      Federal law on management of waste, the Austrian Trade
      Code of 1994, the Umweltverträglichkeitsprüfungsgesetz               1.2.1. Do Article 7(b) and (h) of Directive 93/89 and
      (Law on environmental impact assessments) and the laws               Article 7(4) and (9) of Directive 1999/62 have direct effect
      of the federal states on waste management.                           according to the case-law of the Court of Justice such that if
                                                                           the Directives have not been transposed, or have been
                                                                           transposed incorrectly, into Austrian law they may be relied
—     Incorrect transposition of Article 4(1) of Directive 89/
                                                                           on in calculating a toll that complies with the Directives for
      369/EEC in the Decree on control of air pollution from
                                                                           vehicles with more than three axles used for the carriage of
      boiler plants: that decree does not contain any of the
                                                                           goods on the full itinerary of the Austrian Brenner motorway?
      technical requirements laid down in Article 4(1) of
      Directive 89/369/EEC.
                                                                           1.2.2.     If question 1.2.1 is answered in the affirmative:
(1) OJ L 163, 14.6.1989, p. 32.
(2) OJ L 203, 15.7.1989, p. 50.
                                                                           1.2.2.1. How and by reference to what parameters is the
                                                                           authorised toll for a single journey on the full itinerary to be
                                                                           calculated in the individual case?