Case C-145/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on  17 March 2006  — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento
Date: 2006-06-17
Institutions: Court of Justice
Subjects: Italy, energy-generating product, fuel tax, interpretation of the law, tax law, tax system

C 143/22

EN

Official Journal of the European Union

17.6.2006

The Appellant further claims that the Court of First Instance,
even if that Court was entitled to decide the issue of similarity
of the conflicting marks to the detriment of the Appellant,
violated Article 8(1)(b) CTMR in that it applied erroneous legal
criteria in determining that the conflicting marks, OBELIX and
MOBILIX, are not similar, as well as in determining that some
of the conflicting goods and services are similar, while others
are not.

The Appellant further claims that the Court of First Instance
violated Article 74 CTMR in refusing to accept
the
OBELIX mark was well-known and highly distinctive.

that

The Appellant further claims that the Court of First Instance
violated Article 63 CTMR and its own Rules of Procedure in
that it declared inadmissible the Appellants claim before that
Court to annul the contested Board decision on the grounds
that it had not applied Article 8(5) CTMR to the case at hand.

The Appellant further claims that the Court of First Instance
violated articles 44 and 48 of its own Rules of Procedure in
that it declared inadmissible the claim, presented in the alterna-
tive at the hearing, that the Court remand the case to the Board
in order to allow the Appellant to establish the reputation of
the mark OBELIX.

The Appellant finally claims that the Court of First Instance
violated Article 63 CTMR and its own Rules of Procedure, in
particular Article 135(4) thereof, in that it declared inadmissible
introduced before the Court of First
certain documents
Instance.

Questions referred

1. Is Annex I to Council Regulation (EEC) No 2658/87 of 23
July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff, as amended by Commission
Regulation No 3009/95, to be interpreted as meaning that
combined network/modem cards such as those at issue in
the main proceedings are to be subject, after 1 January
1996, to customs duty as data-processing machines under
heading 8471 or as telecommunication apparatus under
heading 8517?

In that connection the Court of Justice of the European
Communities is asked to rule on whether the concept of
‘specific function’ within the meaning of Note 5(E)
to
Chapter 84 of the Combined Nomenclature, as amended by
is to be interpreted as meaning
Regulation No 3009/95,
that classification is to be under a heading other than 8471
when a WAN function is present, or whether there is to be
a classification under a heading other than 8471 only if the
WAN function can operate independently of an automatic
data-processing machine.

2. If the Court of Justice of the European Communities should
find that
the WAN function in the combined network/
modem card is a specific function, the Court is asked to rule
on whether it is relevant for the customs classification that
the product's principal function can be deemed to be the
LAN function.

Reference for a preliminary ruling from the Østre Land-
sret lodged on 16 March 2006 — Olicom A/S v Skattemi-
nisteriet

(Case C-142/06)

(2006/C 143/39)

Language of the case: Danish

Reference for a preliminary ruling from the Commissione
tributaria di secondo grado di Trento lodged on 17 March
Italiana Srl v Agenzia Dogane Ufficio
2006 — Fendt

Dogane di Trento

(Case C-145/06)

(2006/C 143/40)

Language of the case: Italian

Referring court

Østre Landsret (Eastern Regional Court); (Denmark)

Referring court

Commissione tributaria di secondo grado di Trento

Parties to the main proceedings

Parties to the main proceedings

Applicant: Olicom A/S

Applicant: Fendt Italiana Srl

Defendant: Skatteministeriet (Danish Taxation Ministry)

Defendant: Agenzia Dogane Ufficio Dogane di Trento

17.6.2006

EN

Official Journal of the European Union

C 143/23

Question referred

Are the taxation arrangements in Article 62 of Legislative
Decree No 504/95 compatible with Directive 2003/96/EC (1)
which restructured the Community framework for the taxation
of energy products where those products are used for purposes
other than as motor fuel or heating fuel?

(1) OJ 2003 L 283, p. 51.

Reference for a preliminary ruling from the Consiglio di
Stato, Quinta Sezione lodged on 20 March 2006 — SECAP
SpA v Comune di Torino

(Case C-147/06)

(2006/C 143/42)

Language of the case: Italian

Reference for a preliminary ruling from the Commissione
tributaria di secondo grado di Trento lodged on 17 March
Italiana Srl v Agenzia Dogane Ufficio
2006 — Fendt

Dogane di Trento

(Case C-146/06)

(2006/C 143/41)

Language of the case: Italian

Referring court

Commissione tributaria di secondo grado di Trento

Parties to the main proceedings

Applicant: Fendt Italiana Srl

Defendant: Agenzia Dogane Ufficio Dogane di Trento

Question referred

Are the taxation arrangements in Article 62 of Legislative
Decree No 504/95 compatible with Directive 2003/96/EC (1)
which restructured the Community framework for the taxation
of energy products where those products are used for purposes
other than as motor fuel or heating fuel?

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: SECAP SpA

Defendant: Comune di Torino and Others

Question(s) referred

1. Does the rule laid down in Article 30(4) of Directive
93/37/EEC (1) or the similar rule contained in Art. 55(1) and
(2) of Directive 2004/18/EC (2) (in cases where that is the
relevant provision), that, where tenders appear to be abnor-
mally low in relation to the works, the contracting authority
shall, before it may reject those tenders, request, in writing,
details of the constituent elements of the tender which it
considers
constituent
elements taking account of the explanations received, consti-
tute a fundamental principle of Community law?

and shall verify those

relevant

2. If the answer to the preceding question is in the negative, is
the rule established by Art. 30(4) of Directive 93/37/EEC or
the similar rule contained in Art. 55(1) and (2) of Directive
2004/18/EC (in cases where that is the relevant provision),
according to which, if tenders appear to be abnormally low
in relation to the works, the contracting authority shall,
before it may reject those tenders, request, in writing, details
of the constituent elements of the tender which it considers
relevant and shall verify those constituent elements taking
account of the explanations received, while not presenting
the characteristics of a fundamental principle of Community
law, nevertheless an implied consequence of or a principle
deriving from the principle of competition, considered in
conjunction with the principles of administrative transpar-
ency and non-discrimination on grounds of nationality and
is it therefore, as such, directly binding, taking precedence
over possibly incompatible national provisions adopted by
the Member States to regulate public works contracts to
which Community law is not directly applicable?

(1) OJ 2003 L 283, p. 51.

(1) OJ L 199, p. 54.
(2) OJ L 134, p. 114.