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26.4.

2003 EN Official Journal of the European Union C 101/15

b) Under the Community law principle of pro- of a particular trader is that sufficient of itself to prove
portionality, is the discretion to be exercised in that the shape has acquired a distinctive character within
assessing the impact of overlaying waste that has the meaning of Art 3(3) of the Directive?
not been treated prior to landfill with waste treated
by thermal or mechanical and biological processes 3. If that is insufficient, must it also be proved that the shape
prior to landfill wide or narrow? Does the principle is used and relied upon by the relevant public as a
of proportionality permit hazards caused by waste guarantee of trade origin?
treated prior to landfill by mechanical processes
alone to be offset by other safeguards? 4. If the preponderance of the public recognise a shape
mark as the product of one trader but a significant
minority also regard other shapes in use by other traders
( 1) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of as the shape applied for, has the shape mark acquired a
26 April 1999 on the landfill of waste). ‘distinctive character’ within the meaning of Art 3(3) of
the Directive?

(1 ) First Council Directive 89/104/EEC of 21 December 1988 to


approximate the laws of the Member States relating to trade
marks (OJ L 40 11.2.1989, p. 1).

Reference for a preliminary ruling by the High Court of


Justice (England & Wales), Chancery Division, by order
of that court dated 18 December 2002, in the case of
Société de produits Nestlé SA against Unilever plc

Reference for a preliminary ruling by the Oberlandesge-


(Case C-7/03) richt Naumburg by order of that Court of 8 January 2003
in the procurement review proceedings, Parties to the
(2003/C 101/26) proceedings being 1. The City of Halle, 2. RPL Recy-
clingpark Lochau GmbH and 3. The Thermische
Restabfall- und Energieverwertungsanlage TREA Leuna
consortium
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of (Case C-26/03)
Justice (England & Wales), Chancery Division, dated 18 Decem-
ber 2002, which was received at the Court Registry on
(2003/C 101/27)
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:
Reference has been made to the Court of Justice of the
1. When considering signs which consist of the shape of European Communities by order of the Oberlandesgericht
goods, what is meant by ‘the nature of the goods Naumburg (Higher Regional Court, Naumburg) of 8 January
themselves’ in Art 3(1)(e) of the Trade Marks Directive 2003, received at the Court Registry on 23 January 2003, for
89/104 ( 1)? and in particular does that nature arise from: a preliminary ruling in the procurement review proceedings,
Parties to the proceedings being 1. The City of Halle, 2. RPL
(a) the specification of goods for which the trade mark Recyclingpark Lochau GmbH and 3. The Thermische
is registered (or applied for); Restabfall- und Energieverwertungsanlage TREA Leuna consor-
tium, on the following questions:
(b) the kind of goods for which the mark is used
regarded as articles of commerce; I. 1. Does the first sentence of Article 1(1) of Council
Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and adminis-
(c) only the inherent nature of non-man made articles;
trative provisions relating to the application of
or
review procedures to the award of public supply and
public works contracts ( 1), as replaced by Article 41
(d) the shape of the goods which makes the product of Council Directive 92/50/EEC of 18 June 1992
different in appearance from similar competitive relating to the coordination of procedures for the
products; award of public service contracts ( 2), require Member
States to ensure that a decision taken by a con-
(e) something else, and if so what? tracting authority to award a public contract other-
wise than by means of a procedure which complies
2. Where the shape of a product which has been on the with the directives relating to the award of public
market is merely shown to be recognised by a substantial contracts may be reviewed effectively and as rapidly
proportion of the relevant public as denoting the goods as possible?