Case C-136/08 P: Appeal brought on 3 April 2008 by Japan Tobacco, Inc. against the judgment delivered on 30 January 2008 by the Court of First Instance (Fifth Chamber) in Case T-128/06, Japan Tobacco, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Torrefacção Camelo
Date: 2008-04-03
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), coffee, tobacco industry, trade-mark law

C 209/18

EN

Official Journal of the European Union

15.8.2008

Parties

Applicant: Karol Mihal

Defendant: Daňový úrad Košice V

Re:

the

first

Reference for a preliminary ruling — Najvyšší súd Slovenskej
republiky — Interpretation of
subparagraph of
Article 4(5) of Directive 77/388/EEC: Sixth Council Directive 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 (OJ 1977 L 145, p. 1)
— Treatment of a body governed by public law as a non-
taxable person in respect of activities or operations engaged in
as a public authority — Inclusion of bailiffs in the exercise of
their public duties — Direct effect

Operative part of the order

An activity exercised by a private individual, such as that of a bailiff, is
not exempted from value added tax merely because it consists in enga-
ging in acts falling within the rights and powers of a public authority.
Even on the assumption that, in the exercise of his duties, a bailiff does
carry out such acts, he does not, under legislation such as that at issue
in the main proceedings, exercise his activity in the form of a body
governed by public law, not being integrated into the organisation of
the public administration, but in the form of an independent economic
activity carried out in a self-employed capacity, and, consequently, he is
not covered by the exemption provided for in the first subparagraph of
Article (5) 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.

Parties to the main proceedings

Applicant: M. Ilhan

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Neder-
landen Den Haag — Interpretation of Articles 49 EC to 55 EC
— National rules providing for imposition of a registration tax
on first use of a vehicle on the national road network irrespec-
tive of the duration of use of that network — Liability to tax of
a person established in that Member State who has leased a
vehicle which is registered in another Member State and which
is intended for use essentially in the first Member State for
professional and private purposes for a period of three years

Operative part of the order

Articles 49 EC to 55 EC preclude the application of national rules,
such as those at issue in the main proceedings, by virtue of which a
person, residing or established in a Member State, who uses —
primarily in that Member State — a motor vehicle registered and
leased in another Member State, must, on first use of that vehicle on
the road network of the first Member State, pay a tax which is calcu-
lated without taking into account the duration of the leasing agreement
for that vehicle or the length of time that vehicle will be used on that
road network.

(1) OJ C 92, 12.4.2008.

Order of the Court (Eighth Chamber) of 22 May 2008
(reference for a preliminary ruling from the Hoge Raad
der Nederlanden Den Haag (Netherlands)) — M. Ilhan v
Staatssecretaris van Financiën

Appeal brought on 3 April 2008 by Japan Tobacco, Inc.
against the judgment delivered on 30 January 2008 by the
Court of First Instance (Fifth Chamber) in Case T-128/06,
Japan Tobacco, Inc. v Office for Harmonisation in the
(OHIM) —
Internal Market (Trade Marks and Designs)

(Case C-42/08) (1)

(First subparagraph of Article 104(3) of the Rules of Proce-
dure — Freedom to provide services — Articles 49 EC to 55 EC
— Motor vehicles — Use in one Member State of a motor
vehicle registered and leased in another Member State —
Taxation of that vehicle in the first Member State)

(2008/C 209/25)

Language of the case: Dutch

Parties

Torrefacção Camelo

(Case C-136/08 P)

(2008/C 209/26)

Language of the case: French

Referring court

Hoge Raad der Nederlanden Den Haag

Appellant: Japan Tobacco, Inc. (represented by: A. Ortiz López,
abogada, S. Ferrandis González, abogado and E. Ochoa Santa-
maría, abogada)

15.8.2008

EN

Official Journal of the European Union

C 209/19

Other parties to the proceedings: Office for Harmonisation in the
Internal Market
and Designs) Torrefacção
Camelo Lda

(Trade Marks

Form of order sought

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities of 30 January 2008 delivered in
Case T-128/06 and deliver a judgment amending the judg-
ment of the Court of First Instance and declaring it neces-
sary to apply the prohibition contained in Article 8(5) of
the Community Trade Mark Regulation (1) to this case and,
consequently,
in considering the arguments submitted by
Japan Tobacco, decide to refuse the registration of Com-
munity trade mark No 1 469 121;

— order OHIM to pay the costs of these proceedings.

— declare that, by failing to publish notices of contracts
awarded and by failing to make a public call for tenders or
failing transparently to award service contracts in the field
the Federal Republic of
of public ambulance services,
Germany has failed to fulfil its obligations under Directives
92/50/EEC (1) and 2004/18/EC (2) and infringed the princi-
ples of freedom of establishment and freedom to provide
services (Articles 43 EC and 49 EC);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

the appellant claims that

By its appeal,
the Court of First
Instance infringed the Community Trade Mark Regulation and,
more specifically, Article 8(5) thereof. Despite the fact that the
Court of First Instance recognised the reputation of the earlier
mark, the similarity between the marks in question and the
connection between the goods designated by the marks,
it
required actual, real and current evidence of harm to the earlier
mark, whilst Article 8(5) requires a mere likelihood of harm to
that mark, of unfair advantage being taken of its distinctive
character or of detriment to it.

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

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

Action brought on 16 April 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-160/08)

(2008/C 209/27)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by M. Kellerbauer and D. Kukovec, Agents)

Defendant: Federal Republic of Germany

The Commission states that its attention has been drawn by
several complaints to the procurement practice for service
contracts in the field of public ambulance services in the Federal
Republic of Germany. Those complaints objected to the fact that
contracts in that field were, as a rule, not the subject of a call
for tenders and not awarded transparently. In the Commission's
view,
the generally small number of Europe-wide calls for
tenders for ambulance services by local authorities as bodies
responsible for
the public ambulance service (13 contract
notices in a period of six years, by only 11 out of the 400-plus
German districts and cities with district status) is evidence of a
widespread practice in Germany of not awarding those ambu-
lance services in accordance with the requirements of the Euro-
pean procurement directives and the fundamental principles of
those contracts were awarded
Community law. Moreover,
without measures to ensure the appropriate transparency and to
avoid discrimination.

It says that by that award practice the Federal Republic of
Germany has failed to fulfil
its obligations under Directives
92/50/EEC and 2004/18/EC and infringed the principles of
freedom of establishment and freedom to provide services laid
down in Articles 43 EC and 49 EC, in particular the prohibition
of discrimination contained in those principles.

It

responsible for

Local authorities as bodies
the ambulance
service are contracting authorities within the meaning of
Article 1(b) of Directive 92/50/EEC or Article 1(9) of Directive
should also be undisputed that contracts
2004/18/EC.
awarded in the field of public ambulance services constitute
public contracts for consideration that are caught by those direc-
tives and clearly exceed the relevant threshold value for the
directives to be applicable. It follows from all those circum-
stances that the contracts for services in question should have
been awarded in the procedures laid down by the directives and
in compliance with their general provisions on equal treatment
and non-discrimination.