Judgment of the Court (First Chamber) of 27 September 2001 in Case C-16/00 (reference for a preliminary ruling from the tribunal administratif de Lille): Cibo Participations SA v Directeur régional des impôts du Nord-Pas-de-Calais (Sixth VAT Directive — Economic activity — Involvement of a holding company in the management of its subsidiaries — Deduction of VAT charged on services purchased by a holding company in the context of the acquisition of a shareholding in a subsidiary — Receipt of dividends by a holding company)
Date: 2001-11-10
Institutions: Court of Justice
Subjects: VAT, holding company, interpretation of the law, share, subsidiary, tax harmonisation

10.11.2001

EN

Official Journal of the European Communities

C 317/5

JUDGMENT OF THE COURT

of 4 October 2001

in Case C-517/99 (reference for a preliminary ruling from
the Bundespatentgericht): Merz & Krell GmbH & Co (1)

(Trade marks — Approximation of laws — Article 3(1)(d)
of First Directive 89/104/EEC — Grounds for refusal or
invalidity — Trade marks which consist exclusively of signs
or indications which have become customary in the current
language or in the bona fide and established practices of the
trade — Need for signs or indications to have become
customary to designate the goods or services in respect of
which registration of the mark is sought — No need for the
signs or indications to be directly descriptive of the properties
or characteristics of the goods or services in respect of which
registration of the mark is sought)

(2001/C 317/08)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-517/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Bundespatentge-
richt (Federal Patents Court) (Germany) for a preliminary ruling
in the proceedings pending before that court by Merz & Krell
GmbH & Co — on the interpretation of Article 3(1)(d) of First
Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1) — the Court, composed of:
G.C. Rodrı´guez Iglesias, President, C. Gulmann, M. Wathelet
and V. Skouris (Presidents of Chambers), J.-.P. Puissochet,
P.
Jann, L. Sevo´ n, R. Schintgen, F. Macken (Rapporteur),
N. Colneric and C.W.A. Timmermans, Judges; D. Ruı´z-Jarabo
Colomer, Advocate General; R. Grass, Registrar, has given a
judgment on 4 October 2001, in which it has ruled:

1. Article 3(1)(d) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks must be interpreted as only
precluding registration of a trade mark where the signs or
indications of which the mark is exclusively composed have
become customary in the current language or in the bona fide
and established practices of the trade to designate the goods or
services in respect of which registration of that mark is sought.

2. Article 3(1)(d) must also be interpreted as meaning that it
subjects refusal to register a trade mark to the sole condition
the signs or indications of which the trade mark is
that

exclusively composed have become customary in the current
language or in the bona fide and established practices of the
trade to designate the goods or services in respect of which
registration of that mark is sought. It is immaterial, when that
provision is applied, whether the signs or indications in question
describe the properties or characteristics of those goods or
services.

(1) OJ C 79 of 18.3.2000.

JUDGMENT OF THE COURT

(First Chamber)

of 27 September 2001

in Case C-16/00 (reference for a preliminary ruling from
the tribunal administratif de Lille): Cibo Participations SA
v Directeur régional des impôts du Nord-Pas-de-Calais (1)

(Sixth VAT Directive — Economic activity — Involvement
of a holding company in the management of its subsidiaries
— Deduction of VAT charged on services purchased by a
holding company in the context of the acquisition of a
shareholding in a subsidiary — Receipt of dividends by a
holding company)

(2001/C 317/09)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-16/00: reference to the Court under Article 234 EC
by the tribunal administratif de Lille (Administrative Court,
Lille)
(France) for a preliminary ruling in the proceedings
pending before that court between Cibo Participations SA and
Directeur régional des impôts du Nord-Pas-de-Calais — on the
interpretation of Article 4(1) and (2), Article 13B(d) arid
Article 17(2)(a) and (5) of
the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — the Court (First Chamber),
composed of: M. Wathelet, President of the Chamber, P. Jann
and L. Sevo´ n (Rapporteur), Judges; C. Stix-Hackl, Advocate
General; D. Louterman-Hubeau, Head of Division, for the
Registrar, has given a judgment on 27 September 2001, in
which it has ruled:

C 317/6

EN

Official Journal of the European Communities

10.11.2001

1.

2.

The involvement of a holding company in the management of
companies in which it has acquired a shareholding constitutes
an economic activity within the meaning of Article 4(2) of the
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment, where it entails carrying out transactions
which are subject to value added tax by virtue of Article 2 of
that directive, such as the supply by a holding company to
its subsidiaries of administrative, financial, commercial and
technical services.

Expenditure incurred by a holding company in respect of the
various services which it purchases in connection with the
acquisition of a shareholding in a subsidiary forms part of its
general costs and therefore has,
in principle, a direct and
immediate link with its business as a whole. Thus, if the holding
company carries out both transactions in respect of which value
added tax is deductible and transactions in respect of which it is
not, it follows from the first subparagraph of Article 17(2) of
the Sixth Directive 77/388 that it may deduct only that
proportion of the value added tax which is attributable to the
former.

3.

The receipt of dividends does not fall within the scope of value
added tax.

(1) OJ C 79 of 18.3.2000.

court between Tele Danmark A/S and Handels- og Kontorfunk-
tionærernes Forbund i Danmark (HK) — on the interpretation
of Article 5(1) of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treat-
ment for men and women as regards access to employment,
vocational training and promotion, and working conditions
(OJ 1976 L 39, p. 40) and Article 10 of Council Directive
92/85/EEC of 19 October 1992 on the introduction of
measures to encourage improvements in the safety and health
at work of pregnant workers and workers who have recently
given birth or are breastfeeding (tenth individual Directive
within the meaning of Article 16(1) of Directive 89/391/EEC)
(OJ 1992 L 348, p. 1) — the Court (Fifth Chamber), composed
of: A. La Pergola, President of the Chamber, M. Wathelet
(Rapporteur), P. Jann, L. Sevo´ n and C.W.A. Timmermans,
Judges; D. Ruı´z-Jarabo Colomer, Advocate General; H. von
Holstein, Deputy Registrar, for the Registrar, has given a
judgment on 4 October 2001, in which it has ruled:

1. Article 5(1) of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational
training and promotion, and working conditions and Article 10
of Council Directive 92/85/EEC of 19 October 1992 on the
introduction of measures to encourage improvements in the
safety and health at work of pregnant workers and workers who
have recently given birth or are breastfeeding (tenth individual
Directive within the meaning of Article 16(1) of Directive
89/391/EEC) are to be interpreted as precluding a worker from
being dismissed on the ground of pregnancy

JUDGMENT OF THE COURT

— where she was recruited for a fixed period,

(Fifth Chamber)

of 4 October 2001

in Case C-109/00 (reference for a preliminary ruling
from the Højesteret): Tele Danmark A/S v Handels- og
Kontorfunktionærernes Forbund i Danmark (HK) (1)

(Equal treatment for men and women — Article 5(1) of
Directive 76/207/EEC — Article 10 of Directive 92/85/EEC
— Dismissal of a pregnant worker — Fixed-term employ-
ment contract)

(2001/C 317/10)

(Language of the case: Danish)

— she failed to inform the employer that she was pregnant
even though she was aware of this when the contract of
employment was concluded,

— and because of her pregnancy she was unable to work
during a substantial part of the term of that contract.

2.

The fact that the worker has been recruited by a very large
undertaking which employs temporary workers frequently is of
no relevance to the interpretation of Article 5(1) of Directive
76/207 and Article 10 of Directive 92/85.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(1) OJ C 149 of 27.5.2000.

In Case C-109/00: reference to the Court under Article 234
EC from the Højesteret (Supreme Court, Denmark) for a
preliminary ruling in the proceedings pending before that