Case C-243/03: Action brought on 6 June 2003 by the Commission of the European Communities against the French Republic
Date: 2003-07-19
Institutions: Court of Justice
Subjects: European Commission, France, VAT, action for failure to fulfil an obligation, capital goods, tax harmonisation, tax relief

19.7.2003

EN

Official Journal of the European Union

C 171/19

(3) How should the requirement

that the use must be
‘necessary’ to indicate the intended purpose of a product
be interpreted? Can the criterion of necessity be satisfied
even though it would in itself be possible to state the
intended purpose without an express reference to the
third party’s trade mark, by merely mentioning only for
instance the technical principle of functioning of the
product? What significance does it have in that case that
the statement may be more difficult for consumers to
understand if there is no express reference to the third
party’s trade mark?

(4) What factors should be taken into account when assessing
accordance with honest commercial practice? Does the
mentioning of a third party’s trade mark in connection
with the marketing of one’s own product constitute a
reference to the fact that the marketer’s own product
corresponds, in quality and technically or as regards its
other properties, to the product designated by the third
party’s trade mark?

(5) Does it affect the permissibility of the use of a third
party’s trade mark that the economic operator who refers
to the third party’s trade mark also markets, in addition
to a spare part or accessory, a product of his own which
that spare part or accessory is intended to be used with?

( 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 of 11.2.1989, p. 1).

Action brought on 5 June 2003 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-241/03)

(2003/C 171/28)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
5 June 2003 by the Commission of the European Communi-
ties, represented by G. Zavvos and W. Wils, as Agents.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2000/26/EC of the European Parliament and of
the Council of 16 May 2000 on the approximation of the
laws of the Members States relating to insurance against
civil liability in respect of the use of motor vehicles and
amending Council Directives 73/239/EEC and 88/357/
EEC (Fourth motor insurance Directive) (1), or in any
event by failing to inform the Commission thereof, the
Kingdom of
its
obligations under that directive;

the Netherlands has failed to fulfil

— order the Kingdom of the Netherlands to pay the costs.

Reference for a preliminary ruling by the Juzgado de
1a Instancia no 35 (Barcelona) by order of that Court of
5 May 2003 in the case of QDQ Media S.A. against
A. Omedas Lecha

Pleas in law and main arguments

The time limit for compliance with the directive expired on
20 July 2002.

(Case C-235/03)

(2003/C 171/27)

(1) OJ 2000 L 181, p. 65.

Reference has been made to the Court of Justice of the
European Communities by order of the Juzgado de 1a Instancia
no 35 (Court of First Instance No 35) (Barcelona) of 5 May
2003, received at the Court Registry on 2 June 2003, for a
preliminary ruling in the case of QDQ Media S.A. against
A. Omedas Lecha on the following question:

Within the context of the protection accorded a creditor under
Directive 2000/35/EC (1) of the European Parliament and of
the Council of 29 June 2000 on combating late payment in
commercial transaction, is it possible to regard as a debt-
related recovery cost the expenses arising from the use of legal
representation and assistance in the enforcement proceedings
brought for the purpose of recovering that debt.

( 1) OJ L 200 of 8.8.2000, p. 35.

Action brought on 6 June 2003 by the Commission of the
European Communities against the French Republic

(Case C-243/03)

(2003/C 171/29)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 June 2003
by the Commission of the European Communities, represented
by E. Traversa, acting as Agent, with an address for service in
Luxembourg.

C 171/20

EN

Official Journal of the European Union

19.7.2003

The Commission of the European Communities claims that
the Court should:

Action brought on 10 June 2003 by the French Republic
against the European Parliament and the Council of the
European Union

1.

declare that by introducing a special rule limiting the
deductibility of VAT on the purchase of capital goods on
the ground that they were financed by subsidies, the
French Republic has failed to fulfil its obligations under
Community law, and in particular Articles 17 and 19 of
the Sixth Council Directive of May 1977, as amended, on
the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value
added tax: uniform basis of assessment (1);

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

Articles 17 to 20 of the Sixth Directive establish the scheme
for the right of taxable persons to deduct VAT. Taxable persons
who carry out transactions giving rise to the right to deduct
and at the same time transactions not giving rise to that right
may deduct from the amount of the tax payable by them on
taxed transactions the amount of the tax which they have paid
on purchases of goods or supplies of services used, within the
limit of a proportion calculated according to the procedures
defined in Article 19.

The French legislation provides for a limit on the deduction of
VAT payable on assets financed by subsidies in certain
conditions not provided for in the Sixth Directive. The system
established by the French legislation for mixed taxable persons
precludes entitlement to deduct the VAT paid on the purchase
of capital goods to the extent of the proportion of that
purchase financed by a subsidy, if the proportion thus financed
is not reflected in the price of the taxable transactions. This
exclusion, which concerns purchases of goods assigned to
activities coming within the scope of the directive, takes affect
before any application of the proportion of deduction and
reduces the amount of VAT to which that proportion is
applied, where appropriate, for the purpose of calculating the
deductible VAT. However, derogations from the right
to
deduct are permitted only in the cases expressly provided for
by the Sixth Directive. The French Government cannot rely on
Article 2 of First Council Directive 67/227/EEC of 11 April
1967 on the harmonisation of legislation of Member States
concerning turnover taxes, which provides that VAT is charge-
able after deduction of the amount of VAT borne directly by
the various costs components, to justify such limitation of the
right to deduct.

It also appears that the French authorities apply the same
limitation of deduction to taxable persons who carry out only
transactions giving rise to the right to deduct.

( 1) OJ 1977 L 145, p. 1.

(Case C-244/03)

(2003/C 171/30)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice
of the European Communities on 10 June 2003 by the French
Republic, represented by F. Alabrune, G. de Bergues and
Ch. Lemaire, of acting as Agents, with an address for service in
Luxembourg.

The applicant claims that the Court should:

— Article 1(2) of Directive 2003/15/EC of the European
Parliament and of the Council of 27 February 2003 (1) in
so far as it introduces a new Article 4a into Council
Directive 76/768/EEC (2) on the approximation of the
laws of the Member States relating to cosmetic products;

— order the European Parliament and the Council to pay

the costs.

Pleas in law and main arguments

Article 4a of Directive 76/768/EEC, introduced by Article 1(2)
of Directive 2003/15/EC, prohibits the marketing of cosmetic
products where the final
formulation, or which contain
ingredients or combinations of ingredients which have been
the subject of animal testing and prohibits the performance on
their territory of animal testing of finished cosmetic products
ingredients. That
and of
prohibition is more severe than the prohibition which preceded
it and is incompatible with the rules of the World Trade
Organisation.

ingredients or combinations of

The French Government
seeking the annulment of
is
Article 1(2) of the directive in so far as it infringes the principle
of legal certainty. The Community legislature has disregarded
the requirement of legal certainty, since it has failed to define
clearly and precisely the scope of Article 4a and has used in
several places the imprecise expression ‘in order to meet the
requirements of this Directive’. Article 4a gives rise to sensitive
questions of interpretation and, consequently, the Member
States are likely to transpose the amending directive into their
domestic legal systems in divergent ways. Secondly,
the
requirement of legal certainty is even more important where it
is sought to impose obligations on individuals. In the present
case, the lack of precision and the unclear nature of Article 4a
do not enable undertakings to determine what circumstances
and legal relationships fall within the scope of that article.