CELEX: C2003/070/22
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-35/03: Action brought on 31 January 2003 by the Commission of the European Communities against Ireland

22.3.2003             EN                          Official Journal of the European Union                                            C 70/13
Since the abovementioned amounts, overpaid by the Com-                          ed as covering only private undertakings or undertakings
mission, have not been repaid, the defendant failed to fulfil its               which had supplied gratuitous services?
obligations under the contract.
                                                                          3.    Can Council Directive 89/665/EEC ( 5) of 21 December
                                                                                1989 on the coordination of the laws, regulations and
                                                                                administrative provisions relating to the application of
                                                                                review procedures to the award of public supply and
                                                                                public works contracts, and in particular Articles 2(1)(a)
                                                                                and 5 thereof, be interpreted as meaning that a con-
                                                                                tracting authority may exclude, up to the end of the
Reference for a preliminary ruling by the Conseil d’Etat,                       process of evaluation of the tenders, from participation in
Section d’Administration by judgment of that Court of                           the procedure or submission of a tender, an undertaking
27 December 2002 in the case of La Société Anonyme                              connected to any person who has been responsible for
                 Fabricom against l’Etat Belge                                  research, testing, study or development in respect of the
                                                                                works, supplies or services, although when questioned in
                                                                                that regard by the contracting authority that undertaking
                          (Case C-34/03)                                        declares that it has gained therefrom no unfair advantage
                                                                                of a nature such as to distort the normal conditions of
                                                                                competition?
                         (2003/C 70/21)
                                                                          (1 ) OJ L 209 of 24.07.1992, p. 1.
                                                                          (2 ) OJ L 199 of 09.08.1993, p. 1.
Reference has been made to the Court of Justice of the                    (3 ) OJ L 199 of 09.08.1993, p. 54.
European Communities by judgment of the Conseil d’Etat,                   (4 ) OJ L 328 of 28.11.1997, p. 1.
                                                                          (5 ) OJ L 395 of 30.12.1989, p. 33.
Section d’Administration (Council of State, Administrative
Section) of 27 December 2002, received at the Court Registry
on 29 January 2003, for a preliminary ruling in the case of La
Société Anonyme Fabricom against l’Etat Belge (the Belgian
State) on the following questions:
1.    Do Council Directive 92/50/EEC of 18 June 1992 relating
      to the coordination of procedures for the award of public           Action brought on 31 January 2003 by the Commission
      service contracts (1), and in particular Article 3(2) thereof,              of the European Communities against Ireland
      Council Directive 93/36/EC of 14 June 1993 coordinating
      procedures for the award of public supply contracts (2),
      and in particular Article 5(7) thereof, Council Directive                                     (Case C-35/03)
      93/37/EEC of 14 June 1993 concerning the coordination
      of procedures for the award of public works contracts (3),                                   (2003/C 70/22)
      in particular Article 6(6) thereof, and Directive 97/52/EC
      of the European Parliament and of the Council of
      13 October 1997 amending Directives 92/50/EEC, 93/
      36/EEC and 93/37/EEC concerning procedures for the
      award of public service contracts, public supply contracts          An action against Ireland was brought before the Court of
      and public works contracts ( 4), in particular Articles 2(1(b)      Justice of the European Communities on 31 January 2003 by
      and 3(1)(b) thereof, in conjunction with the principle of           the Commission of the European Communities, represented
      proportionality, freedom of trade and industry and                  by N. Yerrell, acting as agent, with an address for service in
      respect for the law of property guaranteed in particular            Luxembourg.
      by the protocol of 20 March 1992 to the Convention
      for the Protection of Human rights and Fundamental
      Freedoms, preclude the barring of the submission of an              The Applicant claims that the Court should:
      application to participate in or a tender for a public
      contract for works, supplies or services by any person              a)    find that Ireland has failed in its obligations under the EC
      who has been responsible for research, testing, study or                  Treaty by failing to adopt the laws, regulations and
      development in respect of those works, supplies or                        administrative provisions necessary to comply with
      services where that person has not been given an                          Council Directive 1999/70/EC of 28 June 1999 concern-
      opportunity to prove that, in the circumstances of the                    ing the framework agreement on fixed-term work con-
      case, the experience he has acquired could not distort                    cluded by ETUC, UNICE and CEEP ( 1), or by failing to
      competition?                                                              ensure that management and labour have introduced the
                                                                                necessary measures by agreement, and/or by failing to
2.    Would the answer to the preceding question be different if                inform the Commission thereof;
      the abovementioned directives, considered in conjunction
      with the same principle, freedom and law, were interpret-           b)    condemn Ireland to bear the costs of the procedure.
 ---pagebreak--- C 70/14                EN                      Official Journal of the European Union                                          22.3.2003
Pleas in law and main arguments                                        3.    order the Office for Harmonisation in the Internal Market
                                                                             (Trade Marks and Designs) to pay the costs of the
                                                                             proceedings both at first instance and on appeal.
Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period          Pleas and main arguments
expired on 10 July 2001 without Ireland having enacted the
provisions necessary to comply with the directive referred to          —     Incorrect, overly broad interpretation of the absolute
in the conclusions of the Commission.                                        ground for refusal set out in Article 7(1)(b) of Council
                                                                             Regulation No 40/94 on the Community trade mark:
                                                                             from the point of view of the average consumer, the
( 1) OJ L 175, 10.07.1999, p. 43.                                            mark applied for serves to identify the goods and services
                                                                             in respect of which registration is sought as originating
                                                                             from the appellant and, accordingly, to distinguish those
                                                                             goods and services from those of other undertakings.
                                                                             Considered as a whole, the sign consisting of a word
                                                                             element and additional graphic elements undoubtedly
                                                                             performs the function of providing a guarantee that all
                                                                             the goods or services bearing it have originated under the
                                                                             control of a single undertaking which is responsible for
                                                                             their quality.
Appeal brought on 3 February 2003 by BioID AG, in
                                                                       —     Had the Court of First Instance correctly interpreted the
judicial liquidation, against the judgment delivered on
                                                                             absolute ground for refusal set out in Article 7(1)(b), it
5 December 2002 by the Second Chamber of the Court
                                                                             would have had to examine the further plea alleging
of First Instance of the European Communities in Case
                                                                             infringement of Article 7(1)(c) and to reach the con-
T-91/01 between BioID AG, in judicial liquidation, and                       clusion, on the basis of its findings of fact, that the mark
the Office for Harmonisation in the Internal Market
                                                                             applied for was also not caught by the absolute ground
                   (Trade Marks and Designs)
                                                                             for refusal set out therein which applies where the signs
                                                                             or indications of which a mark consists are of an
                                                                             exclusively descriptive nature. In that regard, the Court of
                        (Case C-37/03 P)                                     Justice may, since the state of the proceedings so permits,
                                                                             give final judgment as provided by Article 54 of the
                                                                             Statute of the Court.
                         (2003/C 70/23)
                                                                       (1 ) Not yet published in the Official Journal of the European
                                                                            Communities.
An appeal against the judgment delivered on 5 December
2002 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-91/01 between BioID
AG, in judicial liquidation, and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) was brought
before the Court of Justice of the European Communities
on 3 February 2003 by BioID AG, in judicial liquidation,
represented by Dr Axel Nordemann, Rechtsanwalt, Boehmert               Action brought on 3 February 2003 by the Commission
& Boehmert, Meinekestr. 26, D-10719 Berlin, with an address            of the European Communities against the Kingdom of
for service in Luxembourg.                                                                          Belgium
                                                                                                (Case C-38/03)
The appellant claims that the Court should:
                                                                                                (2003/C 70/24)
1.    set aside the judgment of the Court of First Instance of
      5 December 2002 in Case T-91/01 BioID AG v Office for
      Harmonisation in the Internal Market (OHIM) ( 1);
                                                                       An action against the Kingdom of Belgium was brought
2.    annul the decision of the Second Board of Appeal of the          before the Court of Justice of the European Communities
      Office for Harmonisation in the Internal Market (Trade           on 3 February 2003 by the Commission of the European
      Marks and Designs) of 20 February 2001 in Appeal                 Communities, represented by L. Ström F. Simonetti, acting as
      R 538/1999-2;                                                    Agents.