Case C-499/07: Reference for a preliminary ruling from the De Rechtbank van Eerste Aanleg te Brugge (Belgium) lodged on 16 November 2007 — Beleggen, Risicokapitaal, Beheer NV v Belgische Staat
Date: 2007-11-16
Institutions: Court of Justice
Subjects: Belgium, corporation tax, interpretation of the law, parent company, subsidiary, tax on profits of self-employment, tax system

26.1.2008

EN

Official Journal of the European Union

C 22/29

The arguments on which the appellant bases its opinion that
the judgment under appeal
infringed Article 8(1)(b) by its
improper application are as follows:

— The judgment appealed examined the marks at issue not on
the basis of the criterion of a ‘global assessment’ or ‘overall
impression’, but took a separate, successive and ‘analytical’
approach to the constituent elements of compound marks
thereby infringing Article 8(1)(b) and the Community case-
law interpreting it.

commits another no less serious error which is to ‘take
account of a lower level of attention’ by consumers with
regard to marks of olive oil, instead of taking account of the
level attention normally paid to olive oil by the average
Spanish consumer who is reasonably well-informed and
reasonably observant and circumspect.

(1) Council Regulation of 20 December 1993 on the Community trade

mark.

It

is true that

The judgment appealed failed to do what it ought to have
done from the beginning, which was to examine the marks
using a ‘global assessment’ and the ‘overall impression’ made
by them. Instead, the judgment appealed used an analytical
approach from the outset and made a separate and succes-
sive examination of the figurative elements on one hand
(paragraphs 75 to 87) and the verbal components on the
other (paragraphs 88 to 93), giving decisive weight to the
figurative elements, denying any importance to the verbal
components.
the judgment appealed did
mention the criterion of the global assessment and overall
impression (paragraph 99), but it is also true that it is not
sufficient to mention and repeat a judicial criterion in order
to act correctly it is important to follow it and apply it
correctly to the case. That was not done in the judgment
appealed. In order to assess the similarity of the signs at
issue, the judgment appealed failed to apply the primary and
principal criterion of a global assessment and overall impres-
sion, and applied an analytical criterion, deriving first of all
from a breakdown of the marks into their figurative and
verbal components and then a separate assessment, first of
the two figurative components of the signs at issue and then
of the verbal component of LA ESPAÑOLA, omitting any
reference to the other verbal element of
the opposing
marks, the name CARBONELL.

Reference for a preliminary ruling from the De Rechtbank
van Eerste Aanleg
lodged on
te Brugge
16 November 2007 — Beleggen, Risicokapitaal, Beheer NV
v Belgische Staat

(Belgium)

(Case C-499/07)

(2008/C 22/54)

Language of the case: Dutch

Referring court

Rechtbank van Eerste Aanleg te Brugge (Belgium)

Parties to the main proceedings

Applicant: Beleggen, Risicokapitaal, Beheer NV

Second, the judgment appealed also infringed Article 8(1)(b),
because it did not assess two relevant elements in the case
such as earlier coexistence over a long period and notoriety
which were extremely relevant in order to determine the
likelihood of confusion between the Community mark
applied for LA ESPAÑOLA No 236588 and the earlier
opposing Spanish marks CARBONELL.

Defendant: Belgische Staat

Questions referred

— The perception of the average Spanish consumer of olive oil
and the supposed likelihood of confusion between the
marks at issue.

The judgment appealed, while it alludes to the profile of the
average consumer elaborated by Community case-law, does
not use that consumer model but constitutes the profile of
the average Spanish consumer of olive oil as a consumer
who is closer to the model of the average consumer used in
German case-law:
‘a careless and rash consumer’ than the
model European consumer chosen by Community case-law
who is ‘reasonably well-informed and reasonably observant
and circumspect’
(judgments LLOYD, paragraph 26, and
PICASSO, paragraph 38). In addition, the judgment appealed

that State from its

1. Must Council Directive 90/435/EEC of 23 July 1990 on the
common system of taxation applicable in the case of parent
companies and subsidiaries of different Member States (1), in
particular Article 4(1) thereof, be construed as precluding a
situation in which a Member State applies the exemption
relating to distributed profits which are received by a
company of
subsidiary in another
Member State, except when the subsidiary is liquidated, by
first including in full the distributed profits in the taxable
basis and then deducting 95 % of those profits from the
taxable basis but limiting the deduction to the amount of
profits made in the taxable period in which the distribution
of profits took place (after certain statutorily defined deduc-
tions)
(Article 205(2) WIB 1992 in conjunction with
Article 77 KB/WIB 1992), with the result that, if the profits
made in the relevant taxable period are smaller than the
amount of the aforementioned distributed profits, this does
not give rise to a transferable loss?

C 22/30

EN

Official Journal of the European Union

26.1.2008

2. If so, must Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member
States, in particular Article 4(1) thereof, then be construed as
obliging this Member State to make the distribution of
profits which a company of this Member State receives from
its subsidiary of another Member State deductible in full
from the amount of profits made in the taxable period and
to make any resulting loss transferable to a later taxable
period?

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

3. If

the

aforementioned Directive 90/435/EEC must be
construed as meaning that the Belgian rule is contrary to
Article 4(1) with regard to distributed profits received by the
Belgian parent company from a subsidiary established in the
EU, must it then be determined that the aforementioned
provision of the Directive is also incompatible with the appli-
cation of the Belgian rule to distributed profits received by a
Belgian parent company from a Belgian subsidiary where, as
in the present case, the Belgian legislature, in transposing the
Directive into Belgian law, has chosen to apply the same
treatment to purely internal situations and to those governed
by the Directive and has therefore aligned the Belgian legisla-
tion with the Directive also for purely internal situations?

4. Does Article 43 EC preclude the application of a legislative
rule of a Member State under which, for the purposes of
assessment to corporation tax, the exemption of the distrib-
uted profits received during a taxable period by a company
from its subsidiary established in another Member State is
limited in the first Member State to the amount of the profit
made in the taxable period during which the profits were
distributed (after certain statutorily defined deductions),
whereas a full exemption of the distributed profits would be
possible if that company had set up a permanent establish-
ment in that other Member State?

(1) OJ L 225, p. 6.

Reference for a preliminary ruling from the Naczelny Sąd
Administracyjny (Poland) lodged on 16 November 2007 —
K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

(Case C-502/07)

(2008/C 22/55)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Questions referred

the laws of

1. Do the first and second paragraphs of Article 2 of First
Council Directive 67/227/EEC (1) of 11 April 1967 on the
harmonisation of
legislation of Member States concerning
turnover taxes, in conjunction with Articles 2, 10(1)(a) and
10(2) of Sixth Council Directive 77/388/EEC (2) of 17 May
1977 on the harmonisation of
the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, rule out the possibi-
lity of imposing an obligation on a taxable person for the
purpose of tax on goods and services to pay an additional
tax liability within the terms of Article 109(5) and (6) of the
Ustawa o Podatku od Towarów i Usług (Law on the tax on
goods and services) of 11 March 2004 (Dz. U. No 54,
pos 535 with amendments) in the event that it is established
that the taxable person for the purpose of tax on goods and
services
indicated in the tax declaration submitted an
amount of the tax difference to be repaid or the input tax to
be repaid which is greater than the amount due?

2. Can ‘special measures’ within the terms of Article 27(1) 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, consist, having regard to their
character and purpose, in the possibility of imposing on a
taxable person for the purpose of tax on goods and services
an additional tax liability fixed by a decision of
the tax
authority where it is established that the taxable person has
declared an overstated amount of the tax difference to be
repaid or an overstated amount of input tax to be repaid?

3. Does the power provided for by Article 33 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, encompass the right to intro-
duce the additional tax liability laid down in Article 109(5)
and (6) of the Ustawa o Podatku od Towarów i Usług of
11 March 2004 (Dz. U. No 54, pos 535 with amendments)?

(1) OJ, English Special Edition 1967, p. 14.
(2) OJ 1977 L 145, p. 1.