Case C-251/05: Judgment of the Court (First Chamber) of 6 July 2006 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — Talacre Beach Caravan Sales Ltd v Commissioners of Customs & Excise (Sixth VAT Directive — Article 28 — Exemption with refund of the tax paid — Sale of goods taxed at zero-rate fitted with goods taxed at the standard rate — Residential caravans — Single supply)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: EU Member State, VAT, delivery, goods and services, interpretation of the law

C 212/8

EN

Official Journal of the European Union

2.9.2006

Judgment of the Court (Third Chamber) of 6 July 2006
(reference for a preliminary ruling from the Rechtbank
Amsterdam — Netherlands) — J.J. Kersbergen-Lap, D.
Dams-Schipper v Raad van Bestuur van het Uitvoeringsin-
stituut Werknemersverzekeringen

and updated by Council Regulation (EC) No 118/97 of 2 December
1996, as amended by Council Regulation (EC) No 307/1999 of 8
February 1999, with the result that only the coordinating provision
in Article 10a of that regulation must be applied and that benefit
cannot be paid to any person residing outside the Netherlands.

(Case C-154/05) (1)

(1) OJ C 155, 25.06.2005.

(Social security for migrant workers — Regulation (EEC) No
1408/71 — Article 4(2a), Article 10a and Annex IIa —
Special non-contributory benefits — Netherlands benefit for
disabled young people — Non-exportability)

(2006/C 212/13)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Applicants: J.J.Kersbergen-Lap, D. Dams-Schipper

Defendant: Raad van Bestuur van het Uitvoeringsinstituut
Werknemersverzekeringen

Re:

Reference for a preliminary ruling — Rechtbank Amsterdam —
Interpretation of Articles 4(2a) and10a of and Annex IIa to
Council Regulation (EEC) No 1408/71 of 14 June 1971 on the
application of social security schemes to employed persons, to
self-employed persons and to members of
families
moving within the Community (OJ, English Special Edition
1971 (II), p. 416), as amended by Council Regulation (EEC)
No 1247/92 of 30 April 1992 (OJ 1992 L 136, p.1) — Special
non-contributory benefits — System of coordination laid down
under Article 10a of Regulation No 1408/71 — Field of appli-
cation — Whether or not a benefit for young disabled people
mentioned in Annex IIa to Regulation No 1408/71 is included
— Recipients resident outside the Netherlands

their

Judgment of the Court (First Chamber) of 6 July 2006
(reference for a preliminary ruling from the Court of
Appeal (England and Wales) (Civil Division) — Talacre
Beach Caravan Sales Ltd v Commissioners of Customs &
Excise

(Case C-251/05) (1)

(Sixth VAT Directive — Article 28 — Exemption with
refund of the tax paid — Sale of goods taxed at zero-rate
fitted with goods taxed at the standard rate — Residential
caravans — Single supply)

(2006/C 212/14)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Talacre Beach Caravan Sales Ltd

Defendant: Commissioners of Customs & Excise

Re:

Operative part of the judgment

A benefit under the Wet arbeidsongeschiktheidsvoorziening jongge-
handicapten of 24 April 1997 (law on provision of incapacity benefit
to disabled young people) must be regarded as a special non-contribu-
tory benefit, as referred to in Article 4(2a) of Council Regulation
(EEC) No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed persons and to
members of their families moving within the Community, as amended

Reference for a preliminary ruling — Court of Appeal (Civil
Division) — Interpretation of Article 28(2)(a) 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 assess-
ment (OJ 1977 L 145, p. 1) — Zero-rated goods (caravans)
supplied with standard-rated items — Criteria for determining
whether the transaction must be regarded as a single supply for
the purposes of VAT

2.9.2006

EN

Official Journal of the European Union

C 212/9

Operative part of the judgment

The fact that specific goods are counted as a single supply, including
both a principal item which is by virtue of a Member State's legisla-
tion subject to an exemption with refund of the tax paid within the
meaning of Article 28(2)(a) of
the 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, as amended by Council
Directive 92/77/EEC of 19 October 1992 supplementing the
common system of
value added tax and amending Directive
77/388/EEC (approximation of VAT rates), and items which that
legislation excludes from the scope of that exemption, does not prevent
the Member State concerned from levying VAT at the standard rate
on the supply of those excluded items.

(1) OJ C 205, 20.08.2005.

Appeal brought on 29 May 2006 by Develey Holding
GmbH & Co. Beteiligungs KG against the judgment deliv-
ered by the Court of First Instance (Second Chamber) on
15 March 2006 in Case T-129/04 Develey Holding GmbH
& Co. Beteiligungs KG v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case C-238/06 P)

(2006/C 212/15)

Language of the case: German

Parties

Appellant: Develey Holding GmbH & Co. Beteiligungs KG
(represented by: H. Kunz-Hallstein)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

— Order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs for the first-
instance proceedings and the appeal.

Pleas in law and main arguments

The appellant substantiates its appeal against the abovemen-
tioned judgment of the Court of First Instance as follows:

1. In accordance with the theory relating to standards which is
now generally recognised and also acknowledged with
regard to proceedings before the Court, it corresponds to
the basic rules concerning burden of proof that a party
which is relying on a standard has to prove the factual
premises thereof. That applies in particular to reliance on
exceptions, which always have to be interpreted strictly
according to the case-law of the Court. As OHIM relied on
an exception in refusing protection it was thus obliged to
prove the existence of the facts constituting the exception.

2. In the present case there is not just an earlier national regis-
tration, but also an earlier national registration by a Member
State of both the EU and the Paris Convention for the
Protection of Industrial Property (PC) within the meaning of
Article 6 quinquies (A) PC which can only be denied protec-
tion under the rules relating to exceptions in Article 6 quin-
quies (B) PC. The special right in Article 6 quinquies (A)(1)
prevents the defendant from declaring that the application is
not capable of being protected at least as regards the terri-
tory of the Member State in which the identical union trade
mark enjoys protection. The defendant, however, based its
decision on a lack of distinctive character in the Community
and thus also in the territory of the Federal Republic of
Germany: to that extent the defendant is declaring a regis-
tration made by a State signatory to the Paris Convention to
be invalid. In this case it is not sufficient for OHIM to rely
'national', namely
completely on the independence of
German, legislation as the proprietor of a mark of a State
signatory to the Paris Convention may demand more than
treatment under domestic law. Rather, that assessment must
take place in the light of Article 6 quinquies (A) PC.

Form of order sought

— Annul the judgment of the Court of First Instance of 15

March 2006 in Case T-129/04 (1);

— Annul

the decision of

the Second Board of Appeal of

OHIM of 20 January 2004 (Case R367/2003-2);

— In the alternative, refer the case back to the Court of First

Instance;

3. As regards proof of lack of distinctive character, the Court
of First Instance stated that OHIM complied with its obliga-
tion at least in so far as it correctly referred to general
experience of life. The argument relating to general experi-
ence of life cannot, however, serve as a way of avoiding the
fact that there has been failure to prove the facts. The Court
of First Instance also wrongfully examined the issue of lack
of distinctive character solely on the basis of Article 7(1)(b)
of Regulation No 40/94 and completely disregarded Article
6 quinquies (B) PC.