CELEX: C1998/340/09
Language: en
Date: 1998-11-07 00:00:00
Title: JUDGMENT OF THE COURT of 29 September 1998 in Case C-191/95: Commission of the European Communities v. Federal Republic of Germany (Failure by a Member State to fulfil its obligations - Reasoned opinion - Principle of collegiality - Company law - Directives 68/151/EEC and 78/660/EEC - Annual accounts - Penalties for failure to disclose)

7.11.98               EN                 Official Journal of the European Communities                                      C 340/5
               JUDGMENT OF THE COURT                                court must, in particular, verify whether that right to bring
                       (Sixth Chamber)                              review proceedings can be exercised before the same
                                                                    bodies as those established to hear applications for review
                    of 24 September 1998                            concerning the award of public supply contracts and
                                                                    public works contracts. If the provisions of domestic law
in Case C-111/97 (reference for a preliminary ruling from           are incapable of being interpreted in conformity with
the Bundesvergabeamt): EvoBus Austria GmbH v.                       Directive 92/13/EEC, the persons concerned may, in
    Niederösterreichische Verkehrsorganisations GmbH                accordance with the appropriate procedures under
                          (Növog) (1)                               domestic law, claim compensation for damage suffered as
(Public procurement in the water, energy, transport and             a result of the failure to transpose the directive within the
telecommunications sectors Ð Effect of a directive which            prescribed time-limit.
                  has not been transposed)
                                                                    (1) OJ C 142 of 10.5.1997.
                        (98/C 340/08)
               (Language of the case: German)
 (Provisional translation; the definitive translation will be
                                                                                  JUDGMENT OF THE COURT
         published in the European Court Reports)
                                                                                        of 29 September 1998
In Case C-111/97: reference to the Court under Article 177          in   Case C-191/95: Commission of the European
of the EC Treaty from the Bundesvergabeamt (Federal                       Communities v. Federal Republic of Germany (1)
Procurement Office) (Austria), for a preliminary ruling             (Failure by a Member State to fulfil its obligations Ð
in the proceedings pending before that court between                Reasoned opinion Ð Principle of collegiality Ð Company
EvoBus Austria GmbH and Niederösterreichische                       law Ð Directives 68/151/EEC and 78/660/EEC Ð
Verkehrsorganisations GmbH (Növog) Ð on the                             Annual accounts Ð Penalties for failure to disclose)
interpretation of Council Directive 92/13/EEC of
25 February 1992 coordinating the laws, regulations and                                     (98/C 340/09)
administrative provisions relating to the application of
Community rules on the procurement procedures of
entities operating in the water, energy, transport and                            (Language of the case: German)
telecommunications sectors (OJ L 76 of 23.3.1992, p. 14)
Ð the Court (Sixth Chamber), composed of: H.
Ragnemalm, President of the Chamber, G. F. Mancini,                   (Provisional translation; the definitive translation will be
P. J. G. Kapteyn (Rapporteur), J. L. Murray and K. M.                        published in the European Court Reports)
Ioannou, Judges; N. Fennelly, Advocate General; H. A.
Rühl, Principal Administrator, for the Registrar, has given
a judgment on 24 September 1998, in which it has ruled:             In Case C-191/95: Commission of the European
                                                                    Communities (Agent: Jürgen Grunwald) v Federal
                                                                    Republic of Germany (Agents: Ernst Röder and Alfred
Article 1(1) to (3), Article 2(1), (7) to (9) and the               Dittrich, assisted by Hans-Jürgen Rabe, Rechtsanwalt) Ð
other provisions of Council Directive 92/13/EEC of                  application for a declaration that, by failing to provide for
25 February 1992 coordinating the laws, regulations and             appropriate penalties in cases where companies limited by
administrative provisions relating to the application of            shares fail to disclose their annual accounts, as prescribed
Community rules on the procurement procedures of                    in particular by the First Council Directive 68/151/EEC of
entities operating in the water, energy, transport and              9 March 1968 on coordination of safeguards which, for
telecommunications sectors cannot be interpreted as                 the protection of the interests of members and others, are
meaning that, where the directive has not been transposed           required by Member States of companies within the
by the end of the period prescribed for that purpose, the           meaning of the second paragraph of Article 58 of the
review bodies of the Member States having competence in             Treaty, with a view to making such safeguards equivalent
relation to procedures for the award of public works                throughout the Community (OJ L 65 of 14.3.1968, p. 8),
contracts and public supply contracts may also hear                 and the Fourth Council Directive 78/660/EEC of 25 July
applications for review relating to procedures for the              1978 based on Article 54(3)(g) of the Treaty on the
award of public contracts in the water, energy, transport           annual accounts of certain types of companies (OJ L 222
and telecommunications sectors. However, in order to                of 14.8.1978, p. 11), the Federal Republic of Germany has
observe the requirement that domestic law be interpreted            failed to fulfil its obligations under the EC Treaty and
in conformity with Directive 92/13/EEC and the                      those directives Ð the Court, composed of: G. C.
requirement that the rights of individuals be protected             Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm
effectively, the national court must determine whether the          (Rapporteur), M. Wathelet and R. Schintgen (Presidents of
relevant provisions of its domestic law allow recognition           Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
of a right for individuals to bring review proceedings in           P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward, J.-P.
relation to awards of public contracts in the water, energy,        Puissochet, G. Hirsch, P. Jann, L. Sevón and K. M.
transport and telecommunications sectors. The national              Ioannou, Judges; G. Cosmas, Advocate General; H. A.
 ---pagebreak--- C 340/6               EN                  Official Journal of the European Communities                                    7.11.98
Rühl, and subsequently D. Louterman-Hubeau, Principal                H. Ragnemalm, M. Wathelet and R. Schintgen (Presidents
Administrators, for the Registrar, has given a judgment on           of Chambers), P. J. G. Kapteyn, J. L. Murray, D. A. O.
29 September 1998, in which it:                                      Edward, G. Hirsch, P. Jann and L. Sevón, Judges; F. G.
                                                                     Jacobs, Advocate General; H. von Holstein, Deputy
                                                                     Registrar, for the Registrar, has given a judgment on
1. dismisses the pleas of inadmissibility;                           29 September 1998, in which it has ruled:
2. declares that, by failing to provide for appropriate              1. On a proper construction of Article 4(1)(b) of First
     penalties in cases where companies limited by shares                Council Directive 89/104/EEC of 21 December 1988
     fail to effect compulsory disclosure of their annual                to approximate the laws of the Member States relating
     accounts as prescribed, in particular, by Article 2(1)(f),          to trade marks, the distinctive character of the earlier
     and Articles 3 and 6 of the First Council Directive                 trade mark, and in particular its reputation, must be
     68/151/EEC of 9 March 1968 on coordination of                       taken into account when determining whether the
     safeguards which, for the protection of the interests of            similarity between the goods or services covered by the
     members and others are required by Member States                    two trade marks is sufficient to give rise to the
     of companies within the meaning of the second                       likelihood of confusion.
     paragraph of Article 58 of the Treaty, with a view to
     making such safeguards equivalent throughout the
     Community, in conjunction with Article 47(1) of the             2. There may be a likelihood of confusion within the
     Fourth Council Directive 78/660/EEC of 25 July 1978                 meaning of Article 4(1)(b) of Directive 89/104/EEC
     based on Article 54(3)(g) of the Treaty on the annual               even where the public perception is that the goods or
     accounts of certain types of companies, the Federal                 services have different places of production. By
     Republic of Germany has failed to fulfil its obligations            contrast, there can be no such likelihood where it does
     under those directives;                                             not appear that the public could believe that the goods
                                                                         or services come from the same undertaking or, as the
                                                                         case may be, from economically-linked undertakings.
3. orders the Federal Republic of Germany to pay the
     costs.                                                          (1) OJ C 94 of 22.3.1997.
(1) OJ C 208 of 12.8.1995.
                                                                                   JUDGMENT OF THE COURT
                                                                                            (First Chamber)
               JUDGMENT OF THE COURT
                                                                                         of 29 September 1998
                    of 29 September 1998
                                                                     in Case C-263/97 (reference for a preliminary ruling from
in Case C-39/97 (reference for a preliminary ruling from             the High Court of Justice, Queen's Bench Division): The
the Bundesgerichtshof): Canon Kabushiki Kaisha v.                    Queen v. Intervention Board for Agricultural Produce, ex
                Metro-Goldwyn-Mayer Inc. (1)                                  parte First City Trading Ltd and Others (1)
(Trade mark law Ð Likelihood of confusion Ð Similarity               (Agriculture Ð Common organisation of the markets Ð
                     of goods or services)                           Beef Ð Export refunds Ð Beef of British origin
                        (98/C 340/10)                                repatriated to the United Kingdom as a result of the
                                                                     announcements and decisions made in relation to mad
                                                                                    cow disease' Ð Force majeure)
               (Language of the case: German)
                                                                                             (98/C 340/11)
  (Provisional translation; the definitive translation will be                      (Language of the case: English)
          published in the European Court Reports)
                                                                     In Case C-263/97: reference to the Court under Article 177
In Case C-39/97: reference to the Court under Article 177            of the EC Treaty by the High Court of Justice, Queen's
of the EC Treaty from the Bundesgerichtshof (Federal                 Bench Division (England and Wales), for a preliminary
Court of Justice) (Germany), for a preliminary ruling in             ruling in the proceedings pending before that court
the proceedings pending before that court between Canon              between The Queen and Intervention Board for
Kabushiki Kaisha and Metro-Goldwyn-Mayer Inc.,                       Agricultural Produce, ex parte First City Trading Ltd and
formerly Pathe Communications Corporation Ð on the                   Others, on the interpretation of Articles 23 and 33
interpretation of Article 4(1)(b) of First Council Directive         of Commission Regulation (EEC) No 3665/87 of
89/104/EEC of 21 December 1988 to approximate the                    27 November 1987 laying down common detailed rules
laws of the Member States relating to trade marks (OJ                for the application of the system of export refunds on
L 40 of 11.2.1989, p. 1) Ð the Court, composed of: G. C.             agricultural products (OJ L 351 of 14.12.1987, p. 1) and
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              on the validity of Commission Decision 96/239/EC of