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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.