CELEX: C1999/086/11
Language: en
Date: 1999-03-27 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 4 February 1999 in Case C-103/97 (reference for a preliminary ruling from the Tiroler Landesvergabeamt): Josef Köllensperger GmbH & Co. KG, Atzwanger AG v. Gemeindeverband Bezirkskrankenhaus Schwaz (National 'court or tribunal' within the meaning of Article 177 of the EC Treaty - Procedures for the award of public supply contracts and public works contracts - Body responsible for review procedures)

C 86/6               EN                   Official Journal of the European Communities                                    27.3.1999
              JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                       (Fifth Chamber)                                                      (Sixth Chamber)
                     of 28 January 1999                                                   of 4 February 1999
in Case C-303/97 (reference for a preliminary ruling from
                                                                     in Case C-103/97 (reference for a preliminary ruling from
the Bundesgerichtshof): Verbraucherschutzverein eV v.
                                                                     the Tiroler Landesvergabeamt): Josef Köllensperger GmbH
        Sektkellerei G. C. Kessler GmbH und Co. (1)
                                                                     & Co. KG, Atzwanger AG v. Gemeindeverband Bezirks-
(Brand name Ð Sparkling wine Ð Article 13(2)(b) of                                      krankenhaus Schwaz (1)
Regulation (EEC) No 2333/92 Ð Description of product
       Ð Consumer protection Ð Risk of confusion)                    (National court or tribunal' within the meaning of
                                                                     Article 177 of the EC Treaty Ð Procedures for the award
                        (1999/C 86/10)                               of public supply contracts and public works contracts Ð
                                                                               Body responsible for review procedures)
                                                                                             (1999/C 86/11)
               (Language of the case: German)
                                                                                   (Language of the case: German)
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)
In Case C-303/97: reference to the Court under Article 177             (Provisional translation; the definitive translation will be
of the EC Treaty from the Bundesgerichtshof for a                             published in the European Court Reports)
preliminary ruling in the proceedings pending before that
court between Verbraucherschutzverein eV and Sektkellerei
G. C. Kessler GmbH und Co. Ð on the interpretation of
Article 13(2)(b) of Council Regulation (EEC) No 2333/92              In Case C-103/97: reference to the Court under Article 177
of 13 July 1992 laying down general rules for the                    of the EC Treaty from the Tiroler Landesvergabeamt
description and presentation of sparkling wines and                  (Austria) for a preliminary ruling in the proceedings
aerated sparkling wines (OJ L 231, 13.8.1992, p. 9) Ð the            pending before that tribunal between Josef Köllensperger
Court (Fifth Chamber), composed of: J. P. Puissochet,                GmbH & Co.KG, Atzwanger AG and Gemeindeverband
President of the Chamber, J. C. Moitinho de Almeida, C.              Bezirkskrankenhaus Schwaz Ð on the interpretation of
Gulmann, D. A. O. Edward and M. Wathelet                             Article 2(8) of Council Directive 89/665/EEC of
(Rapporteur) Judges; N. Fennelly, Advocate-General; D.               21 December 1989 on the coordination of the laws,
Louterman-Hubeau, Principal Administrator, for the                   regulations and administrative provisions relating to the
Registrar, has given a judgment on 28 January 1999, in               application of review procedures to the award of public
which it has ruled:                                                  supply and public works contracts (OJ L 395, 30.12.1988,
                                                                     p. 33) Ð the Court (Sixth Chamber), composed of: P. J. G.
                                                                     Kapteyn (Rapporteur), President of the Chamber, G.
On a proper construction of Article 13(2)(b) of Council              Hirsch, G. F. Mancini, H. Ragnemalm and R. Schintgen,
Regulation (EEC) No 2333/92 of 13 July 1992 laying                   Judges; A. Saggio, Advocate-General; H. A. Rühl,
down general rules for the description and presentation of           Principal Administrator, for the Registrar, has given a
sparkling wines and aerated sparkling wines, it is not               judgment on 4 February 1999, in which it has ruled:
sufficient for the prohibition laid down by that provision
to be applied to find that a brand name which includes a
word appearing in the description of one of the products
there mentioned is, as such, likely to be confused with              The conditions set out in Article 2(8) of Council Directive
that description. It is also necessary to establish that use         89/665/EEC of 21 December 1989 on the coordination of
of the brand name is in fact likely to mislead the                   the laws, regulations and administrative provisions
consumers concerned and thus affect their economic                   relating to the application of review procedures to the
behaviour. In that respect, it is for the national court to          award of public supply and public works contracts do not
have regard to the presumed expectations, in regard to               apply to provisions such as those governing the
that information, of an average consumer who is                      composition and functioning of the Tiroler Landesvergabe-
reasonably well informed and reasonably observant and                amt.
circumspect.
                                                                     (1) OJ C 142, 10.5.1997.
(1) OJ C 318, 18.10.1997.