Case C-209/04: Judgment of the Court (Second Chamber) of  23 March 2006  — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Corncrake — Special protection area in the Lauteracher Ried national nature reserve — Exclusion of the Soren and Gleggen-Köblern sites — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Procedure for a construction plan or project — Procedure for determining the road line of a dual carriageway — Procedure for environmental impact study — Procedural breaches relating to the project for the construction of the federal S 18 dual carriageway in Austria — Temporal application of Directive 92/43)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, environmental impact, environmental protection, motorway, project evaluation, protected area, protection of animal life

3.6.2006

EN

Official Journal of the European Union

C 131/13

Judgment of the Court (First Chamber) of 23 March 2006
— Mülhens GmbH & Co. KG v Office for Harmonisation
in the Internal Market (Trade Marks and Designs), Zirh
International Corp.

Judgment of the Court (Second Chamber) of 23 March
2006 — Commission of the European Communities v
Republic of Austria

(Case C-206/04 P) (1)

(Appeal — Community trade mark — Article 8(1)(b) of
Regulation (EC) No 40/94 — Likelihood of confusion —
Word mark ZIRH — Opposition by the proprietor of the
Community trade mark SIR)

(2006/C 131/22)

Language of the case: English

(Case C-209/04) (1)

(Failure of a Member State to fulfil obligations — Directive
79/409/EEC — Conservation of wild birds — Corncrake —
Special protection area in the Lauteracher Ried national
nature reserve — Exclusion of the Soren and Gleggen-
Köblern sites — Directive 92/43/EEC — Conservation of
natural habitats — Wild fauna and flora — Procedure for a
construction plan or project — Procedure for determining the
road line of a dual carriageway — Procedure for environ-
mental impact study — Procedural breaches relating to the
project for the construction of the federal S 18 dual carria-
geway in Austria — Temporal application of Directive
92/43)

Parties

Appellant: Mülhens GmbH & Co. KG (represented by: T.
Schulte-Beckhausen and C. Musiol, lawyers)

Parties

(2006/C 131/23)

Language of the case: German

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: S.
Laitinen and A. von Mühlendahl, Agents)

Applicant: Commission of the European Communities (repre-
sented by: M. van Beek and B. Schima, agents)

Intervener: Zirh International Corp., (represented by L. Kouker)

Defendant: Republic of Austria (represented by: E. Riedl,
Müller and K. Humer, Agents)

J.

Re:

Re:

Appeal against the judgment of the Court of First Instance
(Fourth Chamber) of 3 March 2004 in Case T-355/02 Mülhens
v OHIM, by which it dismissed an action for annulment of the
rejection of the opposition by the proprietor of an earlier mark
to the registration of a trade mark — Similarity of the marks
— Art. 8(1)(b) of Council Regulation (EC) No 40/94 of 20
December 1993 on the Community trade mark (OJ 1994 L 11,
p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Mülhens GmbH & Co. KG to pay the costs.

(1) OJ C 179, 10.07.2004.

Failure of a Member State to fulfil obligations — Infringement
of Article 4(1) and (2) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds (OJ 1979 L 103,
p. 1) and Article 6(4) in conjunction with Article 7 of Council
Directive 92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora (OJ 1992 L 206, p.
7) — Drawing of the boundaries of the special protection area
‘Lauteracher Ried’ on the basis of inaccurate scientific criteria,
wrongly excluding the two sites ‘Soren’ and ‘Gleggen-Köblern’,
which are important for the protection of the corncrake (Crex
crex) and other migratory birds nesting in the meadows —
Authorisation of a road-construction project likely to affect
that area, without complying with the obligations under Article
6(4) of Directive 92/43/EEC.

Operative part of the judgment

1. Declares that, by failing to include in the special protection area at
the Lauteracher Ried national nature reserve
the Soren and
Gleggen-Köblern sites which, according to scientific criteria, are,
together with that special protection area, among the most suitable
territories in number and size for the purposes of Article 4(1) and
(2) of Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds, as amended by Commission Directive
97/49/EC of 29 July 1997, the Republic of Austria has failed to
fulfil its obligations under those provisions of that directive;

C 131/14

EN

Official Journal of the European Union

3.6.2006

2. Dismisses the remainder of the action;

person and the ‘arm's length’ standard laid down in the OECD
model Convention on double taxation can be applied

3. Orders the Commission of the European Communities and the

Republic of Austria to bear their own costs.

(1) OJ C 179, 10.04.2004.

Judgment of the Court (Second Chamber) of 23 March
2006 (reference for a preliminary ruling from the Corte
Suprema di Cassazione (Italy)) — Ministero dell'Economia
e delle Finanze, Agenzia delle Entrate v FCE Bank plc

Operative part of the judgment

Articles 2(1) and 9(1) of 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:
uniform basis of assessment, must be interpreted as meaning that a
from the
fixed establishment, which is not a legal entity distinct
company of which it forms part, established in another Member State
and to which the company supplies services, should not be treated as a
taxable person by reason of the costs imputed to it in respect of those
supplies.

(Case C-210/04) (1)

(1) OJ C 190, 24.07.2004.

(Sixth VAT Directive — Articles 2 and 9 — Fixed establish-
ment — Non-resident company — Legal relationship —
Cost-sharing agreement — OECD Convention on double
taxation — Meaning of ‘taxable person’ — Supply of services
effected for consideration — Administrative practice)

(2006/C 131/24)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Judgment of the Court (First Chamber) of 16 March 2006
(reference for a preliminary ruling of Landesgericht
Innsbruck (Austria)) — Rosmarie Kapferer v Schlank &
Schick GmbH

(Case C-234/04) (1)

(Jurisdiction in civil matters — Regulation (EC) No 44/2001
— Interpretation of Article 15 — Jurisdiction over consumer
contracts — Prize notification — Misleading advertising —
Judgment on jurisdiction — Res judicata — Review on
appeal — Legal certainty — Primacy of Community law —
Article 10 EC)

(2006/C 131/25)

Language of the case: German

Applicant: Ministero dell'Economia e delle Finanze, Agenzia
delle Entrate

Defendant: FCE Bank plc

Re:

Referring court

Landesgericht Innsbruck (Austria)

Reference for a preliminary ruling — Corte Suprema di Cassa-
zione — Interpretation of Articles 2(1) and 9(1) of the Sixth
VAT Directive 77/388/EEC of 17 May 1977 on the harmonisa-
tion of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — Subsidiary, organised as a
producer unit of a company established in another Member
State — Whether the branch can be considered an independent

Parties to the main proceedings

Applicant: Rosmarie Kapferer

Defendant: Schlank & Schick GmbH