Case C-234/05: Reference for a preliminary ruling from the Hof van Beroep te Brussel by judgment of that court of 25 May 2005 in 1. The Belgian State, represented by the Minister for Social Affairs, 2. The Belgian State, represented by the State Secretary for Public Health v BVBA De Backer
Date: 2005-08-20
Institutions: Court of Justice
Subjects: EU law - national law, State aid, financing, interpretation of the law, research body, trade restriction, veterinary inspection

C 205/6

EN

Official Journal of the European Union

20.8.2005

1. Declares that, by failing to adopt, within the prescribed periods,
the laws, regulations and administrative provisions necessary to
comply with Directive 1999/45/EC of the European Parliament
and of the Council of 31 May 1999 concerning the approxima-
tion of the laws, regulations and administrative provisions of the
Member States relating to the classification, packaging and label-
ling of dangerous preparations, and Commission Directive
2001/60/EC of 7 August 2001 adapting to technical progress
Directive 1999/45, the Grand Duchy of Luxembourg has failed
to fulfil its obligations under those directives.

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 82 of 02.04.2005.

Reference for a preliminary ruling from the Gerechtshof
te 's-Hertogenbosch by judgment of that court of 16
February 2005 in V.O.F. Dressuurstal Jespers v Inspecteur
van de Belastingsdienst/Zuidwest/kantoor Breda van de
Rijksbelastingdienst

capable of participating in (dressage) competitions at a
higher level than before such training, is there production
as referred to in Question 1(a) above?

2.

Is it material to the reply to these questions whether there
is a change to the horse which can be measured objec-
tively, such as, for example, it being or becoming entitled
to compete in a higher dressage class?

3. Does it make any difference in this regard whether the
horse concerned also actually attains the intended objec-
tive (the supply by the producer) or that the horse does
not attain the objective sought by its training on account
of problems relating to health or ability, for example?

4. What are the consequences of the answer to Questions 2
and 3 having regard to the fact that this case concerns a
recurrent charge where the tax owed is paid periodically
by declaration?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of
the Member State relating to turnover
taxes— Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145 of 13 June 1977, p. 1).

the laws of

(Case C-233/05)

(2005/C 205/11)

(Language of the case: Dutch)

Reference for a preliminary ruling from the Hof van
Beroep te Brussel by judgment of that court of 25 May
2005 in 1. The Belgian State, represented by the Minister
for Social Affairs, 2. The Belgian State, represented by the
State Secretary for Public Health v BVBA De Backer

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Gerechtshof te 's-Herto-
genbosch ('s-Hertogenbosch Regional Court of Appeal) of 16
February 2005, received at the Court Registry on 30 May
2005, for a preliminary ruling in the proceedings between
V.O.F. Dressuurstal Jespers and Inspecteur van de Belastings-
dienst/Zuidwest/kantoor Breda van de Rijksbelastingdienst on
the following questions:

1(a)

In the case in which a horse that has not been broken in
is trained to make it suitable for certain uses, such as, for
example, use as a riding horse, is a new article created
and is there therefore production within the terms of
Article 5(7)(a) of the Sixth Directive? (1)

1(b) In the case in which,

for example, a horse which is
already suitable for certain uses such as referred to in
Question 1(a) above is trained in such a way that it is

(Case C-234/05)

(2005/C 205/12)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Hof van Beroep te
Brussel (Brussels Court of Appeal) (Belgium) of 25 May 2005,
received at the Court Registry on 27 May 2005, for a preli-
minary ruling in the proceedings between 1. The Belgian State,
represented by the Minister for Social Affairs 2. The Belgian
State, represented by the State Secretary for Public Health, and
B.V.B.A. De Backer on the following question:

20.8.2005

EN

Official Journal of the European Union

C 205/7

Is the Law of 14 July 1994 on financing for veterinary inspec-
tions compatible with Community law? Must the veterinary
charges provided for in that national law be regarded as consti-
tuting both an impermissible restriction on intra-Community
trade and an unlawful charge having an effect equivalent to a
customs duty and/or as a measure having equivalent effect to a
quantitative restriction, and consequently be regarded as an aid
measure which ought to have been notified to the Commis-
sion?

legal conclusions from its own findings, by refusing to take
into account the weak character of the prior mark (such as
FLEX) in its assessment of the degree of similarity between this
mark and a complex mark (such as FLEXI AIR), in which it was
reproduced.

is submitted that signs are not similar or dissimilar in
It
abstracto, but in concreto (i.e. in light of the perception of the
relevant public of such signs). Thus,
if the signs had been
correctly compared in concreto, the logical conclusion would
have been to place less importance on non distinctive signs or
prior marks with a weak distinctive character.

Appeal brought on 28 May 2005 by L'Oréal SA against the
judgment delivered on 16 March 2005 by the Second
Chamber of the Court of First Instance of the European
Communities in Case T-112/03 between L'Oréal SA and
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM), the other party to the
proceedings before the Board of Appeal of the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) having been Revlon Suisse SA

The Appellant also contends that the Court of First Instance
infringed Articles 36 and 53 of the Statute of the Court of
Justice, the contested Judgment being vitiated by a defective
statement of reasons. It is submitted that the Court of First
Instance breached its duty to state reasons by merely ruling, at
paragraph 82, that the ‘weak distinctive character of the earlier
mark is not disputed’, without drawing any conclusion on the
likelihood of confusion.

(Case C-235/05 P)

(2005/C 205/13)

(Language of the case: English)

An appeal against the judgment delivered on 16 March 2005
by the Second Chamber of the Court of First Instance of the
European Communities in case T-112/03 (1) between L'Oréal
SA and the Office for Harmonisation in the Internal Market
(OHIM), the other party to the
(Trade Marks and Designs)
proceedings before the Board of Appeal of
the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs) having been Revlon Suisse SA., was brought before
the Court of Justice of the European Communities on 28 May
2005 by L'Oréal SA, established in Paris (France), represented
by Mr Xavier Buffet Delmas d'Autane.

The Appellant claims that the Court should:

a) set aside the Judgment of the Court of First Instance of 16
March 2005 in Case T-112/03 in its entirety and annul the
decision of the Fourth Board of Appeal of the OHIM of 15
January 2003 regarding the appeal No R0396/2001-4
relating to the opposition proceedings No B 215048 (Com-
munity application No 1011576);

b) order the OHIM to pay all the costs.

Pleas in law and main arguments:

The Appellant submits that the Court of First Instance infringed
Article 8(1)(b) of Regulation No 40/94 (2), and did not draw the

(1) OJ C 132, 28.05.2005, p. 25.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark, OJ L 11, 14.01.1994, p. 1.

Reference for a preliminary ruling from the Tribunal
Supremo (Spain) by order of that court of 13 April 2005
in the case of Asnef-Equifax Servicios de Información
sobre Solvencia y Crédito, S.L. and Administración del
Estado v Asociación de Usuarios de Servicios Bancarios
(AUSBANC)

(Case C-238/05)

(2005/C 205/14)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Supremo (Spain)
of 13 April 2005, received at the Court Registry on 30 May
2005, for a preliminary ruling in the proceedings between
Asnef-Equifax Servicios de Información sobre Solvencia y
Crédito, S.L. and Administración del Estado and Asociación de
Usuarios de Servicios Bancarios (AUSBANC) on the following
questions: