Case C-244/08: Action brought on 4 June 2008 — Commission of the European Communities v Italian Republic
Date: 2008-06-04
Institutions: Court of Justice
Subjects: European Commission, Italy, VAT, action for failure to fulfil an obligation, redemption, tax relief, taxpayer, third country

C 209/28

EN

Official Journal of the European Union

15.8.2008

2. Must Article 5(1)(a) and (b) of First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws
of the Member States relating to trade marks be interpreted
as meaning that a provider of a paid referencing service who
makes available to advertisers keywords reproducing or
imitating registered trade marks and arranges by the referen-
cing agreement to create and favourably display, on the basis
of those keywords, advertising links to sites offering goods
identical or similar to those covered by the trade mark regis-
tration is using those trade marks in a manner which their
proprietor is entitled to prevent?

3. In the event that such use does not constitute a use which
may be prevented by the trade mark proprietor under the
directive or
[Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark] (2), may
the provider of the paid referencing service be regarded as
providing an information society service consisting of the
storage of
the
service, within the meaning of Article 14 of Directive
2000/31 of 8 June 2000 (3), so that that provider cannot
incur liability before it has been informed by the trade mark
proprietor of the unlawful use of the sign by the advertiser?

information provided by the recipient of

(1) First Council Directive 89/104/EEC of 21 December 1988 to approx-
imate the laws of the Member States relating to trade marks (OJ 1989
L 40, p. 1).

(2) OJ 1994 L 11, p. 1.
(3) Directive 2000/31/EC of

the
Council of 8 June 2000 on certain legal aspects of information
society services,
in the Internal
in particular electronic commerce,
Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

the European Parliament and of

Form of order sought

— Declare that, with regard to the refund of VAT to a taxable
person established in another Member State or in a non-
member country, even where that person has a fixed estab-
lishment, the Italian Republic has failed to fulfil its obliga-
tions under Article 1 of
Eighth Council Directive
79/1072/EEC (1) of 6 December 1979 on the harmonization
of the laws of the Member States relating to turnover taxes
— Arrangements for the refund of value added tax to
taxable persons not established in the territory of
the
country, and Article 1 of Thirteenth Council Directive
86/560/EEC (2) of 17 November 1986 on the harmoniza-
tion of the laws of the Member States relating to turnover
taxes — Arrangements for the refund of value added tax to
taxable persons not established in Community territory, in
so far as it obliges a taxable person whose registered office is
in a Member State or in a non-member country but who
has
fixed establishment which, during the period
concerned, supplied goods or services in Italy, to obtain a
refund of input VAT by means of the mechanisms provided
for in those directives, rather than by means of deduction,
where goods or services are purchased not through the fixed
establishment in Italy but directly from the place in which
that person is principally established;

a

— order the Italian Republic to pay the costs.

Action brought on 4 June 2008 — Commission of the
European Communities v Italian Republic

Pleas in law and main arguments

(Case C-244/08)

(2008/C 209/42)

Language of the case: Italian

By the present action, the Commission requests the Court of
Justice to declare that it is incompatible with Community law
for an Italian measure to oblige a person who is subject to VAT
whose registered office is in a Member State or in a non-
member country but who also has a fixed establishment in Italy
which, during the period concerned, has supplied goods or
services in Italy, to obtain a refund of input VAT by means of
the mechanisms provided for in Directive 79/1072/EEC (the
Eighth VAT Directive) and Directive 86/560/EEC (the Thirteenth
VAT Directive) rather than by means of the normal deduction
mechanism provided for
in Directive
77/388/EEC (3)
(the Sixth VAT Directive), where goods or
services are purchased not through the fixed establishment in
Italy but directly from the place in which that person is princi-
pally established abroad.

a general

rule

as

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Aresu and M. Afonso, Agents)

Defendant: Italian Republic

Such a measure, which makes it excessively cumbersome for the
taxpayers concerned to comply with their tax obligations, is, in
the Commission's view, contrary to the provisions and funda-
mental principles of the above-mentioned VAT directives, which
provide that a foreign taxpayer who has a fixed establishment in
Italy and who engages in commercial transactions in Italy from

15.8.2008

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Official Journal of the European Union

C 209/29

that establishment, must be able to use the normal deduction
mechanism provided for in the Sixth Directive, even if some
commercial transactions are effected directly from the place in
which that person is principally established.

(1) OJ 1979 L 331, p. 11.
(2) OJ 1986 L 326, p. 40.
(3) OJ 1977 L 145, p. 1 — Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonization of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment.

Action brought on 3 June 2008 — Commission of the
European Communities v Republic of Finland

(Case C-246/08)

(2008/C 209/43)

Language of the case: Finnish

the first subparagraph of Article 4(5) of the Sixth VAT Directive.
Those services are clearly free from value added tax where they
are provided without charge. If, on the other hand, the recipient
of legal aid pays a fee for the service, services provided by a
State legal aid office cannot be regarded as free from value
added tax.

The second subparagraph of Article 4(5) of the VAT Directive
provides that bodies governed by public law are to be regarded
as taxable persons in respect of the activities in which they
engage as public authorities if treating them differently would
lead to significant distortions of competition. Even if the State
legal aid offices were regarded as acting as public authorities in
this respect, the Commission considers that excluding them
from liability to tax in the above cases would lead to significant
distortions of competition. For that reason they should be
regarded as taxable persons with respect to value added tax.

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation 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).

Parties

Action brought on 9 June 2008 — Commission of the
European Communities v Hellenic Republic

Applicant: Commission of the European Communities (repre-
sented by P. Aalto and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland

Form of order sought

— declare that, by failing to charge value added tax on legal
advice services provided in return for part payment
in
accordance with the legal aid provisions by State legal aid
offices (by public legal advisers acting as their employees),
while the corresponding services provided by private advi-
sers are subject to value added tax, the Republic of Finland
has failed to fulfil its obligations under Articles 2(1) and 4(1),
(2) and (5) of the Sixth VAT Directive 77/388/EEC (1);

(Case C-248/08)

(2008/C 209/44)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Tserepa-Lacombe and A. Markoulli)

— order the Republic of Finland to pay the costs.

Defendant: Hellenic Republic

Pleas in law and main arguments

In Finland a recipient of legal aid may choose a public legal
adviser or a private adviser to represent him in legal proceed-
ings. In that situation the services provided by a public legal
adviser in return for part payment are not subject to value
added tax, whereas value added tax is charged on the services
provided by a private adviser in return for part payment. The
Commission considers that this is a case of different value
added tax treatment of the same services, with effects on the
Community's own resources.

Form of order sought

The Court is asked to:

— declare that the Hellenic Republic has failed to fulfil

its
obligations under Article 4(2)(a) and (c), Article 5(2)(c),
Article 6(2)(b) and Articles 10, 11, 12, 13, 14, 15, 17, 18
and 26 of Regulation (EC) No 1774/2002 (1) of the Euro-
pean Parliament and of the Council of 3 October 2002
laying down health rules concerning animal by-products not
intended for human consumption;

The Commission argues that the services provided by State legal
aid offices in legal proceedings do not fall within the scope of

— order the Hellenic Republic to pay the costs.