CELEX: C2002/219/06
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-244/02: Reference for a preliminary ruling by the korkein hallinto-oikeus by order of that Court of 1st July 2002 in the appeal brought by Kauppatalo Hansel Oy

14.9.2002              EN                    Official Journal of the European Communities                                         C 219/3
In the event that the answer to Question 1 is no:                       Question 2:
Question 2:
                                                                        In the event that the answer to Question 1 is no:
Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular         Is the abovementioned provision of the Directive to be
public contract if — in addition to its participating in the            construed in such a way that — where a bid was eliminated
public procurement procedure — it takes all steps available to          otherwise than in accordance with the law but the review body
it under national law to prevent the contract from being                in the course of its review procedure assumes and establishes
awarded to another bidder?                                              as a preliminary matter that the bid had properly to be
                                                                        eliminated — the tenderer of that bid is entitled to bring an
Question 3:                                                             application in respect of an alleged infringement of the law —
                                                                        in the present case the contracting authority’s decision to make
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-            the award to another bidder — because owing to the
ber 1989 on the coordination of the laws, regulations and               contracting authority’s defective award procedure the applicant
administrative provisions relating to the application of review         may in any event be presumed to have suffered loss and
procedures to the award of public supply and public works               errors in the award procedure can no longer be remedied
contracts, in conjunction with Article 2(1) thereof, to be              subsequently in the review procedure by substitution of
interpreted as meaning that an undertaking must be afforded             decisions of the contracting authority, and the review pro-
the opportunity in law to seek review of an award procedure             cedure must therefore be available to the applicant?
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.                                                   (1 ) OJ L 395 [1989], p. 33.
( 1) OJ L 395 [1989], p. 33.
Reference for a preliminary ruling by the Bundesverga-                  Reference for a preliminary ruling by the korkein hallinto-
beamt (Republic of Austria) by order of that Court of                   oikeus by order of that Court of 1st July 2002 in the
14 May 2002 in the case of Neumayer Bau Ges.m.b.H                                  appeal brought by Kauppatalo Hansel Oy
against Abwasserverband Grossraum Bruck an der Leitha
                          — Neusiedl/See
                                                                                                  (Case C-244/02)
                          (Case C-231/02)
                          (2002/C 219/05)                                                         (2002/C 219/06)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   Reference has been made to the Court of Justice of the
(Republic of Austria) of 14 May 2002, received at the Court             European Communities by order of the korkein hallinto-
Registry on 20 June 2002, for a preliminary ruling in the               oikeus (Supreme Administrative Court) of 1st July 2002,
case of Neumayer Bau Ges.m.b.H against Abwasserverband                  received at the Court Registry on 4 July 2002, for a preliminary
Grossraum Bruck an der Leitha — Neusiedl/See on the                     ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:                                                    following questions:
Question 1:
                                                                        1.    Is Council Directive 93/36/EEC (1) of 14 June 1993
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-                  coordinating procedures for the award of public supply
ber 1989 on the coordination of the laws, regulations and                     contracts to be interpreted as meaning that a contracting
administrative provisions relating to the application of review               authority which has commenced a tender procedure on
procedures to the award of public supply and public works                     the basis of the lowest price may discontinue the
contracts ( 1) to be broadly interpreted as meaning that under it             procedure without awarding a contract when it discovers
entitlement to apply for a review procedure must be available                 after examining and comparing the tenders that because
to any person seeking to receive a specific public contract                   of the content of the invitation to tender it is not possible
whose award is pending, irrespective of whether such person                   for it to award a contract on the basis of the invitation to
has suffered or may suffer loss as a result of the alleged                    tender in question in the most advantageous way from
infringement of the law?                                                      the point of view of total costs?
 ---pagebreak--- C 219/4                 EN                    Official Journal of the European Communities                                     14.9.2002
2.    Is it of importance as regards the acceptability of discon-              (b) If the answer to Question 3(a) is affirmative:
      tinuing the procedure that the content of the invitation
      to tender is defective because of the incorrectness of the                   How is the said reference in the third sentence of
      assessment previously made by the contracting authority?                     Article 16(1) of the TRIPS Agreement to existing
                                                                                   prior rights to be interpreted in the case of a trade
                                                                                   name which is not registered or established in the
( 1) OJ L 199, p. 1.                                                               State in which the trade mark is registered and in
                                                                                   which protection is sought for the trade mark
                                                                                   against the trade name in question, having regard to
                                                                                   the obligation under Article 8 of the Paris Conven-
                                                                                   tion to afford protection to a trade name regardless
                                                                                   of whether it is registered and to the fact that the
                                                                                   permanent appellate body of the WTO has regarded
                                                                                   the reference in Article 2(1) of the TRIPS Agreement
Reference for a preliminary ruling by the korkein oikeus                           to Article 8 of the Paris Convention as meaning
by order of that Court of 3 July 2002 in the case                                  that WTO members are obliged under the TRIPS
of Anheuser-Busch, Incorporated against Budéjovický                               Agreement to protect trade names in accordance
                     Budvar, národní podnik                                        with the latter article? When assessing, in such a
                                                                                   case, whether a trade name has a legal basis prior to
                                                                                   a trade mark for the purposes of the third sentence
                          (Case C-245/02)                                          of Article 16(1) of the TRIPS Agreement, may it thus
                                                                                   be considered as decisive:
                          (2002/C 219/07)                                          (i)   whether the trade name was well-known at
                                                                                         least to some extent among the relevant trade
                                                                                         circles, in the State in which the trade mark is
                                                                                         registered and in which protection is sought
Reference has been made to the Court of Justice of the                                   for it, before the point in time at which
European Communities by order of the korkein oikeus                                      registration of the trade mark was applied for
(Supreme Court) of 3 July 2002, received at the Court Registry                           in the State in question; or
on 5 July 2002, for a preliminary ruling in the case of
Anheuser-Busch, Incorporated against Budéjovický Budvar,                          (ii)  whether the trade name was used in commerce
národní podnik on the following questions:                                               directed to the State in which the trade mark is
                                                                                         registered and in which protection is sought
1.    If the collision of a trade mark and a sign alleged to                             for it before the point in time at which
      infringe it is situated at a point in time before the entry                        registration of the trade mark was applied for
      into force of the TRIPS Agreement, do the provisions of                            in the State in question; or
      the TRIPS Agreement apply to the question of which
      right has the earlier legal basis, when the alleged infringe-                (iii) what other factor may decide whether the trade
      ment of the trade mark is said to continue after the date                          name is to be regarded as an existing prior
      on which the TRIPS Agreement entered into force in the                             right within the meaning of the third sentence
      Community and the Member States?                                                   of Article 16(1) of the TRIPS Agreement?
2.    If the answer to Question 1 is affirmative:
      (a)   Can the trade name of an undertaking also act as a
            sign for goods or services within the meaning of
            the first sentence of Article 16(1) of the TRIPS
            Agreement?
                                                                         Action brought on 9 July 2002 by Portuguese Republic
                                                                             against Commission of the European Communities
      (b) If the answer to Question 2(a) is affirmative, on
            what conditions may a trade name be regarded as a
            sign for goods or services within the meaning of                                     (Case C-249/02)
            the first sentence of Article 16(1) of the TRIPS
            Agreement?                                                                           (2002/C 219/08)
3.    If the answer to Question 2(a) is affirmative:
      (a)   How is the reference in the third sentence of Article        An action against the Commission of the European Communi-
            16(1) of the TRIPS Agreement to existing prior               ties was brought before the Court of Justice of the European
            rights to be interpreted? May the right to a trade           Communities on 9 July 2002 by the Portuguese Republic,
            name also be regarded as an existing prior right             represented by Luis Fernandes, acting as Agent, and Carlos
            within the meaning of the third sentence of Article          Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
            16(1) of the TRIPS Agreement?                                address for service in Luxembourg.