Case C-27/07: Judgment of the Court (Fourth Chamber) of 3 April 2008 (reference for a preliminary ruling from the Conseil d'État (France)) — Banque Fédérative du Crédit Mutuel v Ministre de l'Économie, des Finances et de l'Industrie (Corporation tax — Directive 90/435/EEC — Taxable income of a parent company — Non deductibility of costs and expenses relating to a holding in a subsidiary — Fixing of costs at a flat rate — Ceiling of 5 % of the profits distributed by the subsidiary — Inclusion of tax credits)
Date: 2008-04-03
Institutions: Court of Justice
Subjects: corporation tax, interpretation of the law, parent company, subsidiary, tax on profits of self-employment, tax relief, tax system

24.5.2008

EN

Official Journal of the European Union

C 128/13

Judgment of the Court (Fourth Chamber) of 3 April 2008
(reference for a preliminary ruling from the Conseil d'État
(France)) — Banque Fédérative du Crédit Mutuel v Ministre
de l'Économie, des Finances et de l'Industrie

Judgment of the Court (First Chamber) of 10 April 2008
(reference for a preliminary ruling from the Hoge Raad der
Nederlanden, Netherlands) — adidas AG, adidas Benelux
BV v Marca Mode CV, C&A Nederland, H&M Hennes &
Mauritz Netherlands BV, Vendex KBB Nederland BV

(Case C-27/07) (1)

(Corporation tax — Directive 90/435/EEC — Taxable income
of a parent company — Non deductibility of costs and
expenses relating to a holding in a subsidiary — Fixing of
costs at a flat rate — Ceiling of 5 % of the profits distributed
by the subsidiary — Inclusion of tax credits)

(Case C-102/07) (1)

(Trade marks — Articles 5(1)(b), 5(2) and 6(1)(b) of Directive
89/104/EEC — Requirement of availability — Three-stripe
figurative marks — Two-stripe motifs used by competitors as
decoration — Complaint alleging infringement and dilution of
the mark)

(2008/C 128/20)

Language of the case: French

(2008/C 128/21)

Language of the case: Dutch

Referring court

Conseil d'État

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Banque Fédérative du Crédit Mutuel

Defendant: Ministre de l'Économie, des Finances et de l'Industrie

Parties to the main proceedings

Applicants: adidas AG, adidas Benelux BV

Re:

Reference for a preliminary ruling — Conseil d'État (France) —
Interpretation of Articles 4, 5 and 7 of Council Directive
90/435/EEC of 23 July 1990 on the common system of taxa-
tion applicable in the case of parent companies and subsidiaries
of different Member States (OJ 1990 L 225, p. 6) — Add-back
to the taxable income of the parent company of a fixed propor-
tion of the costs and expenses, equal to 5 % of the income from
its holdings in a subsidiary, including tax credits — Compat-
ibility of that add back with the limit provided for in Article 4
of the directive — Need for the tax credit to be entirely set off
against the tax payable by the parent company.

Defendants: Marca Mode CV, C&A Nederland, H&M Hennes &
Mauritz Netherlands BV, Vendex KBB Nederland BV

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpreta-
tion of Article 3(1)(b) and (c) of First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40, p. 1)
— Non-registration or invalidity — Lack of distinctive character
in not
— Acquisition through usage — General
restricting unduly the availability of signs perceived by the rele-
vant public as signs serving to embellish a product and not to
distinguish it

interest

Operative part of the judgment

Operative part of the judgment

‘profits distributed by the subsidiary’, within the
The concept of
the last sentence of Article 4(2) of Council Directive
meaning of
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, is to be interpreted as not precluding legislation of a
Member State which includes in those profits tax credits which have
been granted in order to offset a withholding tax levied by the Member
State of the subsidiary in the hands of the parent company.

First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade marks
must be interpreted as meaning that the requirement of availability
cannot be taken into account in the assessment of the scope of the
exclusive rights of the proprietor of a trade mark, except in so far as
the limitation of the effects of the trade mark defined in Article 6(1)(b)
of the Directive applies.

(1) OJ C 82, 14.4.2007.

(1) OJ C 82, 14.4.2007.