CELEX: C2001/150/16
Language: en
Date: 2001-05-19 00:00:00
Title: Case C-55/01: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) — by order of that court of 23 November 2000 in the case of Rado Uhren AG

C 150/8                  EN                     Official Journal of the European Communities                                       19.5.2001
1.    Declares that, by refusing to refund to taxable persons              Reference for a preliminary ruling from the Bundesge-
      established in a Member State other than the French Republic,        richtshof (Federal Court of Justice) — by order of that
      who are holders of a main contract for a composite supply of         court of 23 November 2000 in the case of Winward
      services relating to waste disposal, the value added tax which                                  Industries Inc.
      they have been required to pay to the French State in cases
      where they have subcontracted part of the work covered by such                                  (Case C-54/01)
      a contract to a taxable person established in France, the French
      Republic has failed to fulfil its obligations under the Eighth
      Council Directive 79/1072/EEC of 6 December 1979 on the                                        (2001/C 150/15)
      harmonisation of the laws of the Member States relating to
      turnover taxes — Arrangements for the refund of value added          Reference has been made to the Court of Justice of the
      tax to taxable persons not established in the territory of the       European Communities by an order of the Bundesgerichtshof
      country, in particular Article 2 thereof;                            of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
2.    Dismisses the remainder of the application;                          case of Winward Industries Inc. on the following questions on
                                                                           the interpretation of Article 3(1)(b), (c) and (e) of the First
3.    Orders the French Republic to pay the costs.                         Council Directive 89/104/EEC of 21 December 1988 (1) to
                                                                           approximate the laws of the Member States relating to trade
(1) OJ C 55 of 20.02.1998.                                                 marks:
                                                                           1.    In determining whether a three-dimensional trade mark
                                                                                 which depicts the shape of a product has distinctive
                                                                                 character within the meaning of Article 3(1)(b) of the
                                                                                 above directive is there a stricter test for distinctive
                                                                                 character than in the case of other forms of trade marks?
Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that                    2.    In the case of three-dimensional trade marks which depict
    court of 23 November 2000 in the case of Linde AG                            the shape of the product, does Article 3(1)(c) of the
                                                                                 Directive have any significance independently of
                                                                                 Article 3(1)(e)? If so, when considering Article 3(1)(c) —
                           (Case C-53/01)                                        or alternatively Article 3(1)(e) — must regard be had to
                                                                                 the interest of the trade in having the shape of the product
                          (2001/C 150/14)                                        available for use, so that registration is, at least in
                                                                                 principle, ruled out and is possible as a rule only in the
Reference has been made to the Court of Justice of the                           case of trade marks which meet the requirements of
European Communities by an order of the Bundesgerichtshof                        Article 3(3), first sentence, of the directive?
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in
the case of Linde AG on the following questions on the                     (1) OJ 1989 L 40, p. 1.
interpretation of Article 3(1)(b), (c) and (e) of the First Council
Directive 89/104/EEC of 21 December 1988 (1) to approximate
the laws of the Member States relating to trade marks:
1.    In determining whether a three-dimensional trade mark
      which depicts the shape of a product has distinctive
      character within the meaning of Article 3(1)(b) of the
      above directive is there a stricter test for distinctive             Reference for a preliminary ruling from the Bundesge-
      character than in the case of other forms of trade marks?            richtshof (Federal Court of Justice) — by order of that
                                                                           court of 23 November 2000 in the case of Rado Uhren
2.    In the case of three-dimensional trade marks which depict                                             AG
      the shape of the product, does Article 3(1)(c) of the
      Directive have any significance independently of                                                (Case C-55/01)
      Article 3(1)(e)? If so, when considering Article 3(1)(c) —
      or alternatively Article 3(1)(e) — must regard be had to
      the interest of the trade in having the shape of the product                                   (2001/C 150/16)
      available for use, so that registration is, at least in
      principle, ruled out and is possible as a rule only in the           Reference has been made to the Court of Justice of the
      case of trade marks which meet the requirements of                   European Communities by an order of the Bundesgerichtshof
      Article 3(3), first sentence, of the directive?                      of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
(1) OJ 1989 L 40, p. 1.                                                    case of Rado Uhren AG on the following questions on the
                                                                           interpretation of Article 3(1)(b), (c) and (e) of the First Council
                                                                           Directive 89/104/EEC of 21 December 1988 (1) to approximate
                                                                           the laws of the Member States relating to trade marks:
 ---pagebreak--- 19.5.2001              EN                     Official Journal of the European Communities                                         C 150/9
1.   In determining whether a three-dimensional trade mark               Appeal brought on 19 February 2001 by Chronopost SA
     which depicts the shape of a product has distinctive                against the judgment delivered on 14 December 2000 by
     character within the meaning of Article 3(1)(b) of the              the Fourth Chamber (Extended Composition) of the Court
     above directive is there a stricter test for distinctive            of First Instance of the European Communities in Case
     character than in the case of other forms of trade marks?           T-613/97 between Union Française de l’Express (UFEX),
                                                                         DHL International, Federal Express International (France)
                                                                         and CRIE and the Commission of the European Communi-
2.   In the case of three-dimensional trade marks which depict           ties, supported by the French Republic, Chronopost SA
     the shape of the product, does Article 3(1)(c) of the                                          and La Poste
     Directive have any significance independently of
     Article 3(1)(e)? If so, when considering Article 3(1)(c) —
     or alternatively Article 3(1)(e) — must regard be had to                                     (Case C-83/01 P)
     the interest of the trade in having the shape of the product
     available for use, so that registration is, at least in                                      (2001/C 150/18)
     principle, ruled out and is possible as a rule only in the
     case of trade marks which meet the requirements of
                                                                         An appeal against the judgment delivered on 14 December
     Article 3(3), first sentence, of the directive?
                                                                         2000 by the Fourth Chamber (Extended Composition) of the
                                                                         Court of First Instance of the European Communities in Case
                                                                         T-613/97 between Union Française de l’Express (UFEX), DHL
(1) OJ 1989 L 40, p. 1.                                                  International, Federal Express International (France) and CRIE
                                                                         and the Commission of the European Communities, supported
                                                                         by the French Republic, Chronopost SA and La Poste, was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 19 February 2001 by Chronopost SA, represented by
                                                                         V. Bouaziz Torron and D. Berlin, Avocats, with an address for
                                                                         service in Luxembourg.
                                                                         The appellant claims that the Court should:
                                                                         —     quash the decision of the Court of First Instance of
Reference for a preliminary ruling by the Dioikitiko                           14 December 2000 in so far as it annuls Article 1 of
Efeteio (Three-member Chamber C) Athens by order of                            Decision 98/365/EC on the ground that the Commission
that court of 26 October 2000 in the case of Makedoniko                        should have considered whether, on account of La Poste’s
                       Metro v Greek State                                     reserved rights, the charges applied by that undertaking
                                                                               for services to its subsidiary were based on costs lower
                                                                               than those which a private operator with no reserved
                          (Case C-57/01)                                       rights would have had to bear;
                                                                         —     declare that there is no need to refer the case back to the
                         (2001/C 150/17)                                       Court of First Instance; and give final judgment in the
                                                                               matter, in accordance with the first paragraph of
                                                                               Article 54 of the Statute of the Court of Justice;
Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio                  —     in those circumstances, and in so far as the Court of First
(Administrative Court of Appeal), Athens, of 26 October 2000                   Instance rejected all the other pleas in law raised by UFEX
which was received at the Court Registry on 9 February 2001,                   in support of its action for annulment, declare that the
for a preliminary ruling in the case of Makedoniko Metro v                     action brought by UFEX contesting Decision 98/365/EC
Greek State on the following questions:                                        was unfounded;
                                                                         —     in so far as, under Article 69(2) of the Rules of Procedure,
‘Must a change in the composition of an association participat-                the unsuccessful party is to be ordered to pay the costs if
ing in procedures for the award of a public-works contract,                    they have been applied for in the successful party’s
which occurs after submission of tenders and selection of the                  pleadings, and in so far as the pleadings submitted by
association as the provisional contractor and is tacitly accepted              UFEX before the Court of First Instance in support of its
by the awarding authority, be interpreted in such a way as to                  action for annulment must be rejected, UFEX and the
result in the loss of that association’s right to participate in the           other applicants must be regarded as having been unsuc-
procedure and, by extension, also of its right to, or interest in,             cessful in their pleadings, order UFEX and the other
the award of the contract for execution of the works? Is such                  applicants to pay the costs;
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’                                    —     in the alternative, refer the case back to the Court of First
                                                                               Instance for judgment and order UFEX and the other
                                                                               applicants to bear the costs incurred by Chronopost in
                                                                               the proceedings both before the Court of First Instance
                                                                               and the Court of Justice.