Case C-246/05: Reference for a preliminary ruling from the Oberster Patent- und Markensenat by order of that adjudication body of 9 February 2005 in Armin Häupl v Lidl Stiftung & Co KG
Date: 2005-08-06
Institutions: Court of Justice
Subjects: EU trade mark, approximation of laws, brand name, intellectual property, interpretation of the law, trade-mark law

C 193/20

EN

Official Journal of the European Union

6.8.2005

Appeal brought on 6 June 2005 by Agraz, SA and Others
against the judgment delivered on 17 March 2005 by the
Third Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-285/03 between Agraz, SA
and the Commission of
the European
and Others
Communities

(Case C-243/05 P)

(2005/C 193/31)

(Language of the case: French)

An appeal against the judgment delivered on 17 March 2005
by the Third Chamber of the Court of First Instance of the
European Communities in Case T-285/03 between Agraz, SA
and Others and the Commission of the European Communities
the European
was brought before the Court of
Communities on 6 June 2005 by Agraz, SA and Others, repre-
sented by José Luís da Cruz Vilaça and Dorothée Choussy,
lawyers.

Justice of

The appellants claim that the Court should:

1. set aside in part the judgment of the Court of First Instance
of the European Communities of 17 March 2005 in so far
as it held that the damage was not specific and dismissed
the application; and, in a new decision,

2. principally, find that the conditions for the establishment of
the non-contractual liability of the Commission are satisfied
in this case; order the defendant to pay the balance of the
production aid to each of
the applicant companies (as
detailed in Annex A.27) together with interest at the rates
to be fixed by the Court of First Instance with effect from
12 July 2000 (or, in the alternative, from 13 July 2000 or,
in the further alternative, from 16 July 2000) up to the date
on which payment is actually made; and order the Commis-
sion to pay all of the costs in both sets of proceedings
including those incurred by the appellants;

3.

in the alternative, refer the case back to the Court of First
Instance for an adjudication on the amounts of the compen-
sation to be paid to the appellants, after they have been
heard again, and order the Commission to pay the costs
(including those incurred by the appellants) in the proceed-
ings on appeal and in the proceedings at
first instance
before the Court of First Instance.

Pleas in law and main arguments

The appellant companies rely on the following pleas in support
of their appeal:

In the first part, the appellants maintain that the Court of First
Instance failed to have regard to the case-law of the Com-
munity Courts, and also the principles established by the
judicial orders of the Member States in relation to
national
non-contractual civil liability, by misinterpreting the notion of
‘specific damage’ and by confusing the determination of the
nature of the damage with the calculation of the amount of the
damage.

In the second part, the appellants submit arguments designed
to demonstrate, in relation to the recognition of their right to
compensation, that the Court of First Instance did not draw the
necessary consequences from its findings in relation to the
unlawfulness of
in breaching
Council Regulation (EC) No 2201/96 of 28 October 1996 on
the common organisation of the markets in processed fruit and
vegetable products, (1) or in relation to the principles of a duty
of care and sound administration.

the Commission's conduct

Second plea:: Breach of the inter partes principle and of the
appellants' right to be heard;

Third plea:: Distortion of the forms of order sought by the
appellants;

Fourth plea:: Disregard by the Court of First Instance of its
unlimited jurisdiction and of its duty to adjudicate; denial of
justice, in that the Court of First Instance omitted to draw the
necessary consequences from its findings in relation to the
fixing of the amount of the damage.

(1) OJ 1996 L 297, p. 29.

Reference for a preliminary ruling from the Oberster
Patent- und Markensenat by order of that adjudication
body of 9 February 2005 in Armin Häupl v Lidl Stiftung
& Co KG

(Case C-246/05)

(2005/C 193/32)

(Language of the case: German)

First plea:: Error of law,
in that the Court of First Instance
considered that the damage which the appellants sustained was
it could not constitute a
not specific and that, accordingly,
basis for their right to compensation.

This plea is in two parts:

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Patent- und
Markensenat of 9 February 2005, received at the Court Registry
on 10 June 2005, for a preliminary ruling in the proceedings
between Armin Häupl and Lidl Stiftung & Co KG on the
following questions:

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.