Case C-523/04: Judgment of the Court (Grand Chamber) of 24 April 2007 — Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Conclusion by a Member State of a bilateral air transport agreement with the United States of America — Right of establishment — Secondary law governing the internal market in air transport — External competence of the Community)
Date: 2007-04-28
Institutions: Court of Justice
Subjects: European Commission, Netherlands, United States, air freight rate, air traffic, air transport, bilateral agreement, external competence (EU), reservation

C 96/6

EN

Official Journal of the European Union

28.4.2007

6. Where a parallel

importer has failed to give prior notice to the
trade mark proprietor
concerning a repackaged pharmaceutical
product, he infringes that proprietor's rights on the occasion of any
subsequent importation of that product, so long as he has not
given the proprietor such notice. The sanction for that infringement
must be not only proportionate, but also sufficiently effective and a
sufficient deterrent to ensure that Directive 89/104, as amended by
the Agreement on the European Economic Area, is fully effective. A
national measure under which, in the case of such an infringement,
the trade mark proprietor is entitled to claim financial remedies on
the same basis as if the goods had been spurious, is not in itself
contrary to the principle of proportionality. It is for the national
court, however, to determine the amount of the financial remedies
according to the circumstances of each case, in the light in particu-
lar of the extent of damage to the trade mark proprietor caused by
the parallel
importer's infringement and in accordance with the
principle of proportionality.

— Charge actually falling on the Communities, as lessee, either
because of stipulations in the leases, or because it is simply
passed on in the amount of the rent

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs;

3. Orders the Council of the European Union to bear its own costs.

(1) OJ C 273, 6.11.2004.

(1) OJ C 300, 4.12.2004.

Judgment of the Court (First Chamber) of 22 March 2007
— Commission of the European Communities v Kingdom
of Belgium

(Case C-437/04) (1)

(Failure of a Member State to fulfil obligations — Protocol on
the Privileges and Immunities of the European Communities
— Buildings leased by the Communities — Region of Brussels
Capital — Tax on owners)

(2007/C 96/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-F. Pasquier, Agent)

Defendant: Kingdom of Belgium (represented by: E. Dominkovits,
Agent)

Judgment of the Court (Grand Chamber) of 24 April 2007
— Commission of the European Communities v Kingdom
of the Netherlands

(Case C-523/04) (1)

(Failure by a Member State to fulfil its obligations — Conclu-
sion by a Member State of a bilateral air transport agreement
with the United States of America — Right of establishment
— Secondary law governing the internal market in air trans-
port — External competence of the Community)

(2007/C 96/09)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Huttunen and W. Wils, Agents)

Defendant: Kingdom of
H.G. Sevenster and M. de Grave, Agents)

the Netherlands

(represented by:

Intervener in support of the defendant: French Republic (represented
by: G. de Bergues and A. Hare, Agents)

Intervener in support of the applicant: Council of the European
Union (represented by: G. Maganza and A.-M. Colaert, Agents)

Re:

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 3 of the Protocol on the privileges and immunities of
the European Communities of 8 April 1965, exempting the
Communities, their assets, revenues and other property from all
direct taxes — National provision imposing a tax on owners of
buildings subject to business occupancy in the Region of Brus-
sels Capital the surface area of which exceeds a certain threshold

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 5 and 52 of the EC Treaty (now Articles 10
and 43 EC) — Infringement of Council Regulations (EEC)
Nos 2409/92 of 23 July 1992 on fares and rates for air services
(OJ 1992 L 240, p. 15) and 2299/89 of 24 July 1989 on a
code of conduct for computerised reservation systems (OJ 1989
L 220, p. 1), as amended by Council Regulation (EEC)
No 3089/93 of 29 October 1993 (OJ 1993 L 278, p. 1) —
‘Open sky’ bilateral agreement with the US — Review —
Restrictions on freedom to provide services

28.4.2007

EN

Official Journal of the European Union

C 96/7

Operative part of the judgment

Parties to the main proceedings

The Court:

1. By contracting or maintaining in force, despite the renegotiation of
the Air Transport Agreement concluded between the Kingdom of
the Netherlands and the United States of America on 3 April
1957,
international commitments towards the United States of
America:

Applicant: Aktiebolaget NN

Defendant: Skatteverket

— concerning air fares and rates charged by carriers designated by
the United States of America on intra-Community routes,

Re:

— concerning computerised reservations systems used or offered for

use on Netherlands territory, and

— recognising the United States of America as having the right
to withdraw, suspend or limit traffic rights in cases where air
carriers designated by the Kingdom of the Netherlands are not
owned by the latter or by Netherlands nationals,

the Kingdom of the Netherlands has failed to fulfil its obligations
under Article 5 of the EC Treaty (now Article 10 EC), Article 52
of the EC Treaty (now, after amendment, Article 43 EC), and
under Council Regulations (EEC) Nos 2409/92 of 23 July 1992
on fares and rates for air services and 2299/89 of 24 July 1989
on a code of conduct for computerised reservation systems.

2. The Kingdom of the Netherlands is ordered to pay the costs.

3. The French Republic is ordered to bear its own costs.

(1) OJ C 57, 5.3.2005.

Judgment of the Court (Third Chamber) of 29 March 2007
(reference for a preliminary ruling from the Regerings-
rätten — Sweden) — Aktiebolaget NN v Skatteverket

(Case C-111/05) (1)

(Sixth VAT Directive — Supply of goods — Article 8(1)(a) —
Fibre-optic cable between two Member States running in part
outside Community territory — Tax jurisdiction of each
Member State limited to the length of cable installed on its
territory — Non-taxation of the part lying in the exclusive
economic zone, on the continental shelf or on the seabed)

(2007/C 96/10)

Language of the case: Swedish

Referring court

Regeringsrätten

Reference for a preliminary ruling — Regeringsrätten — Inter-
pretation of Article 8(1)(a) and 9(1) and (2) 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) — Place of taxable transactions —
Supply and laying of an underwater fibre optic cable between
two Member States, partly in an area outside the territory of any
State

Operative part of the judgment

1. A transaction for the supply and installation of a fibre-optic cable
linking two Member States and sited in part outside Community
territory must be considered a supply of goods within the meaning
of Article 5(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, as amended by Council Directive
2002/93/EC of 3 December 2002, where it is apparent that,
after functionality tests carried out by the supplier, the cable will be
transferred to the client who will dispose of it as owner, that the
price of the cable itself clearly represents the greater part of the
total cost of that transaction, and that the supplier's services are
limited to the laying of the cable without altering its nature and
without adapting it to the specific requirements of the client.

2. Article 8(1)(a) of Sixth Directive 77/388 must be interpreted as
meaning that the right to tax the supply and laying of a fibre-optic
cable linking two Member States and sited in part outside the terri-
tory of the Community is held by each Member State pro rata
according to the length of cable in its territory with regard both to
the price of the cable itself and the rest of the materials and to the
cost of the services relating to the laying of the cable.

3. Article 8(1)(a) of Sixth Directive 77/388, read in conjunction
with Articles 2(1) and 3 of that directive, must be interpreted as
meaning that the supply and laying of a fibre-optic cable linking
two Member States is not subject to VAT for that part of the
transaction which is carried out in the exclusive economic zone, on
the continental shelf and at sea.

(1) OJ C 106, 30.4.2005.