Case C-317/07: Judgment of the Court (Second Chamber) of 4 December 2008 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Lahti Energia Oy (Directive 2000/76/EC — Incineration of waste — Purification and combustion — Crude gas produced from waste — Definition of waste — Incineration plant — Co-incineration plant)
Date: 2008-12-04
Institutions: Court of Justice
Subjects: Finland, energy production, gas, interpretation of the law, waste incineration

24.1.2009

EN

Official Journal of the European Union

C 19/5

2. The fact that, for the average consumer, who is reasonably well
informed and reasonably observant and circumspect, the later mark
calls the earlier mark with a reputation to mind is tantamount to
the existence of such a link, within the meaning of Adidas-
Salomon and Adidas Benelux, between the conflicting marks.

— proof that the use of the later mark is or would be detrimental
to the distinctive character of the earlier mark requires evidence
of a change in the economic behaviour of the average consumer
of the goods or services for which the earlier mark was regis-
tered consequent on the use of the later mark, or a serious like-
lihood that such a change will occur in the future.

3. The fact that:

— the earlier mark has a huge reputation for certain specific types

of goods or services, and

(1) OJ C 183, 4.8.2007.

— those goods or services and the goods or services for which the
to a

registered are dissimilar or dissimilar

later mark is
substantial degree, and

— the earlier mark is unique in respect of any goods or services,

does not necessarily imply that there is a link, within the meaning
of Adidas-Salomon and Adidas Benelux, between the conflicting
marks.

4. Article 4(4)(a) of Directive 89/104 must be

interpreted as
meaning that whether a use of the later mark takes or would take
unfair advantage of, or is or would be detrimental to, the distinctive
character or the repute of the earlier mark must be assessed globally,
taking into account all factors relevant to the circumstances of the
case.

5. The fact that:

Judgment of the Court (Second Chamber) of 4 December
2008 (reference for a preliminary ruling from the Korkein
hallinto-oikeus — Finland) — Lahti Energia Oy

(Case C-317/07) (1)

(Directive 2000/76/EC — Incineration of waste — Purifica-
tion and combustion — Crude gas produced from waste —
Definition of waste — Incineration plant — Co-incineration
plant)

(2009/C 19/08)

Language of the case: Finnish

— the earlier mark has a huge reputation for certain specific types

of goods or services, and

Referring court

— those goods or services and the goods or services for which the
to a

registered are dissimilar or dissimilar

later mark is
substantial degree, and

— the earlier mark is unique in respect of any goods or services,

and

Korkein hallinto-oikeus

Parties in the main proceedings

Lahti Energia Oy

— for the average consumer, who is reasonably well informed and
reasonably observant and circumspect, the later mark calls the
earlier mark to mind,

Re:

is not sufficient to establish that the use of the later mark takes or
would take unfair advantage of, or is or would be detrimental to,
the distinctive character or the repute of the earlier mark, within the
meaning of Article 4(4)(a) of Directive 89/104.

6. Article 4(4)(a) of Directive 89/104 must be

interpreted as

meaning that:

Reference for a preliminary ruling — Korkein hallinto-oikeus —
Interpretation of Article 3(1),
and (5) of Directive
2000/76/EC of the European Parliament and of the Council of
4 December 2000 on the incineration of waste (OJ 2000 L 332,
p. 91) — Purification and combustion in a boiler of a power
plant — Concept of waste — Concepts of incineration plant
and co-incineration plant

(4)

— the use of the later mark may be detrimental to the distinctive
character of the earlier mark with a reputation even if that
mark is not unique;

— a first use of the later mark may suffice to be detrimental to

the distinctive character of the earlier mark;

Operative part of the judgment

1) The definition of ‘waste’ in Article 3(1) of Directive 2000/76/EC
of the European Parliament and of the Council of 4 December
2000 on the
cover gaseous
incineration of waste does not
substances;

C 19/6

EN

Official Journal of the European Union

24.1.2009

is

thermally treated, on condition that

2) The definition of ‘incineration plant’ in Article 3(4) of Directive
2000/76 relates to any technical unit and equipment in which
waste
substances
resulting from the use of the thermal treatment process are subse-
quently incinerated and that, in that connection, the presence of an
incineration line is not a necessary condition for the purposes of
such classification;

the

3) In circumstances such as those at issue in the main proceedings:

— a gas plant whose objective is to obtain products in gaseous
in this case purified gas, by thermally treating waste
form,
must be classified as a ‘co-incineration plant’ within the
meaning of Article 3(5) of Directive 2000/76;

— a power plant which uses as an additional fuel, in substitution
for fossil fuels used for the most part in its production activities,
a purified gas obtained by the co-incineration of waste in a gas
plant does not fall within the scope of that directive.

Re:

Preliminary ruling — Unabhängiger Finanzsenat — Interpreta-
tion of Articles 43 EC and 49 EC — National legislation reser-
ving a tax advantage in respect of the acquisition of unused
tangible assets
to traders using
(Investitionszuwachsprämie)
those assets in a domestic place of business

Operative part of the judgment

Article 49 EC precludes Member State legislation, such as that at issue
in the main proceedings, pursuant to which undertakings which acquire
tangible assets are refused the benefit of an investment premium solely
because the assets in respect of which that premium is claimed, which
are hired out for remuneration, are used primarily in other Member
States.

(1) OJ C 211, 8.9.2007.

(1) OJ C 269, 10.11.2007.

Judgment of the Court (Third Chamber) of 4 December
2008 (reference
a preliminary ruling from the
Unabhängiger Finanzsenat, Außenstelle Wien — Austria)
— Jobra Vermögensverwaltungs-Gesellschaft mbH v
Finanzamt Amstetten Melk Scheibbs

for

(Case C-330/07) (1)

(Freedom to provide services — Freedom of establishment —
Tax legislation — Investment premium — National legislation
conferring a tax advantage only on assets used in a domestic
place of business — Exclusion of assets hired out for remu-
neration primarily used in other Member States — Leasing of
vehicles — Prevention of abuse)

(2009/C 19/09)

Language of the case: German

Judgment of the Court (First Chamber) of 4 December
a preliminary ruling from the
2008 (reference for
Finanzgericht Hamburg — Germany) — Glencore Grain
Rotterdam BV v Hauptzollamt Hamburg-Jonas

(Case C-391/07) (1)

(Regulation (EC) No 800/1999 — Export refunds on agri-
cultural products — Article 16 — Differentiated refund —
Proof that customs formalities for importation have been
completed — Production of a copy or photocopy of the trans-
port documents — Regulation (EC) No 1501/95 — Granting
of export refunds on cereals — Article 13 — Derogation from
Article 16 of Regulation (EC) No 800/1999)

(2009/C 19/10)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Wien

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Parties to the main proceedings

Applicant: Jobra Vermögensverwaltungs-Gesellschaft mbH

Applicant: Glencore Grain Rotterdam BV

Defendant: Finanzamt Amstetten Melk Scheibbs

Defendant: Hauptzollamt Hamburg-Jonas