Case C-249/05: Action brought on 15 June 2005 by the Commission of the European Communities against the Republic of Finland
Date: 2005-08-06
Institutions: Court of Justice
Subjects: European Commission, Finland, VAT, action for failure to fulfil an obligation, delivery, freedom to provide services, goods and services, provision of services

6.8.2005

EN

Official Journal of the European Union

C 193/21

1. Is Article 10(1) of Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member
States
to be interpreted as
meaning that the ‘date of the completion of the registration
procedure’ means the start of the period of protection?

relating to trade marks (1)

tion in the field of value added tax and repealing Regulation
(EEC) No 218/92, (2) the Republic of Finland has failed to
fulfil its obligations under Articles 21 and 22 of the Sixth
Council Directive 77/388/EEC of 17 May 1977 (3) and Arti-
cles 28 EC and 49 EC;

2. Is Article 12(1) of Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member
States relating to trade marks to be interpreted as meaning
that there are proper reasons for non-use of a mark if the
implementation of the corporate strategy being pursued by
the trade mark proprietor is delayed for reasons outside the
control of the undertaking, or is the trade mark proprietor
obliged to change his corporate strategy in order to be able
to use the mark in good time?

(1) OJ L 40, 11.02.1989, p. 1.

Action brought on 15 June 2005 by the Commission of
the Republic of
the European Communities against

Finland

(Case C-249/05)

(2005/C 193/33)

(Language of the case: Finnish)

An action against the Republic of Finland was brought before
the Court of Justice of the European Communities on 15 June
2005 by the Commission of the European Communities, repre-
sented by D. Triantafyllou and I. Koskinen, acting as Agents,
with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by imposing an obligation to appoint a tax
representative on taxable persons not established in the
country who carry out taxable transactions in Finland and
are established in another Member State or in the territory
of a third country with which a convention has been
concluded concerning mutual assistance, the scope of which
corresponds to the scope laid down in Council Directive
76/308/EEC of 15 March 1976 on mutual assistance for the
recovery of claims relating to certain levies, duties, taxes and
other measures (1) and in Council Regulation (EC) No
1798/2003 of 7 October 2003 on administrative coopera-

2. order the Republic of Finland to pay the costs.

Pleas in law and main arguments

Under Article 21(2) of the Sixth VAT Directive 77/388/EEC the
Member States may not impose an obligation to appoint a tax
representative on an economic operator not established in the
country who is established in another Member State. In such
cases the appointment of a tax representative is always volun-
tary for an economic operator not established in the country.

if the
The Finnish system is as follows in this respect:
economic operator is a taxable person not established in
Finland, the person liable to pay value added tax is the recipient
of the supply (‘reversed tax liability’); (b) where an economic
operator not established in Finland is given the possibility to
in that case he is obliged to
register as a taxable person,
appoint a tax representative in Finland.

(a)

As regards the appointment of a tax representative, the Finnish
system is not in accordance with Community law. The manda-
tory obligation to appoint a tax representative is contrary to
Article 21(2) of the Sixth VAT Directive.

The Finnish system can give economic operators not estab-
lished in the country freedom to choose to be registered as
taxable persons, but Finland cannot make such a choice condi-
tional on fulfilling a mandatory obligation, of appointing a tax
representative, which is contrary to the Sixth VAT Directive
and in direct conflict with the aim of Directive 2000/65/EC (4)
and in conflict with the principles of the free movement of
goods and the freedom to provide services laid down in the EC
Treaty.

(1) OJ L 73 of 19.3.1976, p. 18.
(2) OJ L 264 of 15.10.2003, p. 1.
(3) On the harmonisation of the laws of the Member States concerning
turnover taxes – Common system of value added tax: uniform basis
of assessment, OJ L 145 of 13.6.1977, p. 1.

(4) Council Directive of 17 October 2000 amending Directive
77/388/EEC as regards the determination of the person liable for
payment of value added tax, OJ L 269 of 21.10.2000, p. 44.