Case C-141/02 P: Appeal brought on 15 April 2002 by the Commission of the European Communities against the judgment delivered on 30 January 2002 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-54/99 max.mobil Telekommunikation Service GmbH v Commission of the European Communities, supported by the Kingdom of the Netherlands
Date: 2002-07-13
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for annulment (EU), dominant position, quasi-fiscal charge, radio telecommunications

13.7.2002

EN

Official Journal of the European Communities

C 169/15

Court Registry on 15 March 2002, for a preliminary ruling
in the case of Finanzamt Gummersbach against Gerhard
Bockemühl on the following questions:

1.

2.

Is it necessary under Article 18(1)(a) of Directive 77/388/
EEC (1) for a person to whom services are supplied, who
is liable to pay tax under Article 21(1) of Directive 77/
388/EEC and who has been charged to tax as such, to be
in possession of an invoice issued in accordance with
Article 22(3) of Directive 77/388/EEC in order to exercise
his right to deduct input tax?

If the answer to this question is in the affirmative, what
details must the invoice contain? Is it detrimental
if,
instead of the supply of staff, the work carried out using
that staff is given as the service supplied?

3. What would be the consequences in law of inextinguish-
able doubts that the person issuing the invoice supplied
the service invoiced?

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 23 January 2002 in the case
of Finanzamt Offenbach am Main-Land against Faxworld
Vorgründungsgesellschaft Peter Hünninghausen und
Wolfgang Klein GbR

(Case C-137/02)

(2002/C 169/27)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 23 January 2002, received at the
Court Registry on 12 April 2002, for a preliminary ruling in
the case of Finanzamt Offenbach am Main-Land against
Faxworld Vorgründungsgesellschaft Peter Hünninghausen und
Wolfgang Klein GbR on the following question:

Is a partnership which has been established for the sole purpose
of forming a company limited by shares (Aktiengesellschaft)
entitled to deduct the value added tax paid on goods and
services procured by it,
if, after that company has been
formed, that partnership effects by formal act a transfer for

consideration of the procured goods and services to the
subsequently founded limited company and, from the outset,
did not intend to carry out any other output transactions, and
if, in the Member State concerned, a transfer of a totality of
assets is not deemed to be a supply of goods or services (first
sentence of Article 5(8) and Article 6(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) (1)?

(1) OJ L 145 of 13.6.1977, p. 1.

Appeal brought on 15 April 2002 by the Commission of
the European Communities against the judgment deliver-
ed on 30 January 2002 by the Court of First Instance of
the European Communities (Second Chamber, Extended
Composition) in Case T-54/99 max.mobil Telekommuni-
kation Service GmbH v Commission of the European
Communities, supported by the Kingdom of the Nether-
lands

(Case C-141/02 P)

(2002/C 169/28)

An appeal against the judgment delivered on 30 January 2002
by the Court of First Instance of the European Communities
(Second Chamber, Extended Composition), in Case T-54/99
max.mobil Telekommunikation Service GmbH v Commission
of the European Communities(1), supported by the Kingdom
of the Netherlands, was brought before the Court of Justice
of the European Communities on 15 April 2002 by the
Commission of the European Communities, represented by
Walter Mölls and Klaus Wiedner, of the Commission’s Legal
Service, with an address for service at the office of Luis Escobar
Guerrero, also of the Legal Service, Wagner Centre, C 254,
Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
the European Communities of 30 January 2002 in Case
T-54/99 (max.mobil v Commission)
in so far as it
declares admissible the action for annulment brought by
max.mobil against the Commission’s letter of 11 Decem-
ber 1998;

— dismiss as inadmissible the action for annulment brought
letter of

the Commission’s

by max.mobil against
11 December 1998;

— order max.mobil to pay the costs of the proceedings

before the Court of Justice.

C 169/16

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

The judgment of
Instance infringed
the Court of First
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well
as the ‘right to sound administration’ and the Commission’s
in so far as it inferred that
‘general duty of supervision’,
to have their complaint under
individuals have a right
Article 90 of the EC Treaty (now Article 86 EC) dealt with and
a corresponding right of action. Moreover,
it erroneously
inferred that complaints by individuals in the context of
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of
First Instance has at any rate infringed Article 90(3). If so, and
in so far as it based its conclusions thereon it has also infringed
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.

(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v

Commission [2002] ECR II-0000.

Appeal brought on 25 April 2002 by Streamserve Inc.
against the judgment delivered on 27 February 2002 by
the Fourth Chamber of the Court of First Instance of
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case C-150/02 P)

(2002/C 169/29)

An appeal against the judgment delivered on 27 February
2002 by the Fourth Chamber of the Court of First Instance
of the European Communities in case T-106/00 between
Streamserve Inc. and the Office for Harmonization in the
Internal Market
(OHIM), was
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.

(Trade Marks and Designs)

in the Internal Market (Trade Marks and Designs) did not
infringe Article 7 (1)
(c) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community
trade mark (2) in adopting its decision of 28 February
2000 (Case R 423/1999-2) with the exception as regards
goods in the categories ‘manuals and publications’;

2.

3.

for the rest, annul the decision of the Second Board of
Appeal of the Office for Harmonization in the Internal
Market (Trade Marks and Designs) of 28 February 2000
(Case R 423/1999-2);

order the Office for Harmonization in the Internal Market
(Trade Marks and Designs) to pay the costs both at first
instance and on appeal.

Pleas in law and main arguments

The Appellant maintains that the Court of First Instance
misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
held that the aforementioned article prevents the signs or
indications referred to in that provision from being reserved
to one undertaking alone because they have been registered as
a mark and that the provision thus pursues an aim which is in
the public interest, namely that such signs or indications may
be freely used by all.

In the Appellant’s view the criteria applied by the Court of
First Instance in the application of Article 7 (1) (c) to the facts
of the case are too severe.

(1) OJ C 176, 24.6.2000, p. 29.
(2) OJ L 11, 14.1.1994, p. 1.

Action brought on 26 April 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-155/02)

(2002/C 169/30)

The Appellant claims that the Court should:

1.

annul the judgment of the Court of First Instance of
27 February 2002 in case T-106/00, Streamserve Inc. v.
OHIM (‘STREAMSERVE’), in so far as it found that the
Second Board of Appeal of the Office for Harmonization

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 26 April
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
Kirchberg, Luxembourg.