Case C-408/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 5 October 2006 — Landesanstalt für Landwirtschaft, Abteilung Förderwesen und Fachrecht v Franz Götz
Date: 2006-12-16
Institutions: Court of Justice
Subjects: VAT, agricultural quota, interpretation of the law, milk, restriction on competition, sale, tax exemption

C 310/6

EN

Official Journal of the European Union

16.12.2006

Appeal brought on 2 October 2006 by Miguel Torres S.A
against
Instance
(Second Chamber) delivered on 11 July 2006 in Case T-
247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A.

the Court of First

the judgment of

(Case C-405/06 P)

(2006/C 310/10)

Language of the case: Spanish

between the two conflicting marks. The appellant submits
that the Court of First Instance does not take as its starting
point the test relating to the perception of the average Euro-
pean consumer, but with the test relating to the perception
of the Spanish, Portuguese and Italian consumer.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Parties

Appellant: Miguel Torres S.A (represented by: E. Armijo
Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez
Gόmez, abogados)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) and Bodegas Muga
S.A.

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 5 October 2006 — Lande-
sanstalt für Landwirtschaft, Abteilung Förderwesen und
Fachrecht v Franz Götz

(Case C-408/06)

(2006/C 310/11)

Language of the case: German

Form of order sought

— annul the judgment under appeal in so far as it dismisses
the action for annulment brought against the contested
decision;

Referring court

— annul the contested decision in so far as it was not annulled

by the judgment under appeal; and

Bundesfinanzhof (Germany)

— order OHIM to pay the costs.

Pleas in law and main arguments

the fact

1. Infringement of the rights of defence of Miguel Torres S.A.,
the judgment under appeal
that
by reason of
dismissed the first of the pleas in law in the action for
annulment before the Court of First Instance based on the
infringement of the appellant's rights of defence. The refusal
by the First Board of Appeal of OHIM to accept the docu-
ments produced by Miguel Torres S.A. and its statement of
grounds for the appeal, of 25 January 2002, which sought
to prove that the mark TORRES is well known throughout
the EU is, in the appellant's view, a substantive irregularity
on the basis of which the Court of First Instance should
have annulled the contested decision. By failing to do so the
Court of First Instance also infringed the appellant's rights
of defence, undermining the principle of functional conti-
nuity and Article 8(1)(b) of the Regulation on the Com-
munity trade mark. (1)

2. Infringement of Article 8(1)(b) of the Regulation on the
Community trade mark on account of incorrect interpreta-
tion of that provision by the Court of First Instance. The
application by the Court of First Instance of that principle
contains an error of law because of incorrect application of
the criterion of the perception of the relevant public for the
purpose of the assessment of the likelihood of confusion

Parties to the main proceedings

Applicant: Landesanstalt für Landwirtschaft, Abteilung Förder-
wesen und Fachrecht

Defendant: Franz Götz

Questions referred

1. Is a ‘Milchquoten-Verkaufsstelle’ (milk-quota sales point) set up
by a German Land which transfers delivery reference quanti-
ties to milk producers for consideration

a) an agricultural intervention agency within the meaning
of the third subparagraph of Article 4(5) of and Annex D
(7) to 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 (1) (‘the Sixth Directive’)
which carries out transactions in respect of agricultural
products pursuant to regulations on the common organi-
sation of the market in these products, or

b) a Verkaufsstelle (staff shop) within the meaning of the
third subparagraph of Article 4(5) of and Annex D (12)
of the Sixth Directive?

16.12.2006

EN

Official Journal of the European Union

C 310/7

2. If Question 1 is to be answered in the negative:

expires one month after both parties have performed their
obligations under the agreement in full?

is it

a) In circumstances such as those in the main proceedings,
where in a Member State both public and private milk-
quota sales points transfer delivery reference quantities
for consideration,
the case that when assessing
whether the treatment of a Milchquoten-Verkaufsstelle of a
body governed by public law as a non-taxable person
would lead to ‘significant distortions of competition’
within the meaning of
the second subparagraph of
Article 4(5) of the Sixth Directive the relevant geographic
market is the transfer area defined by the Member State?

b) When assessing whether the treatment of a public Milch-
quoten-Verkaufsstelle as a non-taxable person would lead
to such ‘significant distortions of competition’ is only the
normal case of transfers independently of the land (by a
Verkaufsstelle) to be taken into consideration, or are other
types of transfers independently of the land (by farmers
as taxable persons) also to be included even though they
are only exceptional cases?

(1) OJ 1977 L 145, p. 1.

In the event
referred in the negative:

that

the Court answers the first question

2. Should Directive 85/577/EEC be interpreted as meaning
that the right of renunciation cannot be forfeited by the
the
consumer — in particular after the completion of
contract — if he has not been given notice in accordance
with the first paragraph of Article 4 of the Directive?

(1) OJ L 372, p. 31.

Appeal brought on 12 October 2006 by the Italian
Republic against the judgment delivered by the Court of
First Instance (Fourth Chamber) on 13 July 2006 in Case
T-225/04 Italian Republic v Commission of the European
Communities

Reference for a preliminary ruling from the Oberlandes-
gericht Stuttgart (Germany) lodged on 10 October 2006 —
Annelore Hamilton v Volksbank Filder eG

(Case C-412/06)

(2006/C 310/12)

Parties

(Case C-417/06 P)

(2006/C 310/13)

Language of the case: Italian

Language of the case: German

Italian Republic (represented by:
Appellant:
Agent, and D. Del Gaizo, avvocato dello Stato)

I.M. Braguglia,

Referring court

Oberlandesgericht Stuttgart

Parties to the main proceedings

Applicant: Annelore Hamilton

Defendant: Volksbank Filder eG

Question referred

1. May the first paragraph of Article 4 and Article 5(1) of
Council Directive 85/577/EEC of 20 December 1985 (1) be
interpreted as meaning that the national legislature is not
precluded from placing a time-limit on the right of cancella-
tion given by Article 5 of
the Directive, despite the
consumer having been given defective notice, so that it

Other party to the proceedings: Commission of the European
Communities

Form of order sought

— Annul the judgment of the Court of First Instance (Fourth
Chamber) of 13 July 2006 in Case T-225/04 dismissing the
action brought by the Italian Republic against the Commis-
sion for annulment of Commission Decision No C (2003)
3971 final of 26 November 2003 establishing indicative
allocations between the Member States of the commitment
appropriations under Community initiatives for the period
1994-1999;

— grant the form of order sought at first instance in full
pursuant to Article 113 of the Rules of Procedure of the
Court of First Instance of the European Communities, as
amended, and annul the Commission Decision;

— order the Commission to pay the costs of the proceedings
and the costs in the proceedings before the Court of First
Instance.