Case C-442/07: Judgment of the Court (Grand Chamber) of 9 December 2008 (reference for a preliminary ruling from the Oberster Patent- und Markensenat — Austria) — Verein Radetzky-Orden v Bundesvereinigung Kameradschaft Feldmarschall Radetzky (Trade marks — Directive 89/104/EEC — Article 12 — Revocation — Marks registered by a non-profit-making association — Concept of genuine use of a trade mark — Charitable activities)
Date: 2008-12-09
Institutions: Court of Justice
Subjects: brand name, interpretation of the law, trade-mark law

21.2.2009

EN

Official Journal of the European Union

C 44/17

Operative part of the judgment

Operative part of the judgment

The prohibition on putting State aid into effect laid down in the last
sentence of Article 88(3) EC does not require a national court, in a
situation such as that in the main proceedings, to dismiss an action
brought by a State aid recipient concerning the amount of that State
aid allegedly due in respect of a period predating a decision of the
the European Communities finding that aid to be
Commission of
compatible with the common market.

(1) OJ C 283, 24.11.2007.

Judgment of the Court (Fourth Chamber) of 22 December
2008 (reference
a preliminary ruling from the
Wojewódzki Sąd Administracyjny w Krakowie — Republic
of Poland) — Magoora sp. zoo v Dyrektor Izby Skarbowej
w Krakowie

for

(Case C-414/07) (1)

(Sixth VAT Directive — Article 17(2) and (6) — National
legislation — Deduction of VAT on the purchase of fuel for
certain vehicles irrespective of the purpose for which they are
used — Effective restriction on deductions — Exclusions laid
down by national law when the directive entered into force)

(2009/C 44/27)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Krakowie

Parties to the main proceedings

Applicant: Magoora sp. zoo

Defendant: Dyrektor Izby Skarbowej w Krakowie

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Adminis-
tracyjny w Krakowie — Interpretation of Article 17(2) and (6)
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 (OJ 1977 L 145, p. 1) — National rules
excluding the right
for
certain vehicles irrespective of the purpose (business or private)
for which the vehicle concerned is used — Amendment of the
criteria governing vehicles covered by the exclusion, resulting in
a de facto restriction of the scope of the right to deduct in
comparison with the period before Directive 77/388 entered
into force in the Member State concerned

tax on purchases of

to deduct

fuel

The second subparagraph of Article 17(6) of the Sixth Council Direc-
tive 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 precludes a Member State
from repealing in their entirety, when that directive is transposed into
national law, national provisions concerning restrictions on the right to
deduct input tax on purchases of fuel for vehicles used for a taxable
activity, by replacing, on the date on which that directive entered into
force on its territory, those provisions by provisions laying down new
criteria in that regard, if — which is for the national court to deter-
mine — the latter provisions have the effect of extending the scope of
those restrictions. It precludes,
in any event, a Member State from
subsequently amending its legislation which entered into force on that
date, so as to extend the scope of those restrictions as compared with
the situation existing prior to that date.

(1) OJ C 269, 10.11.2007.

Judgment of the Court (Grand Chamber) of 9 December
2008 (reference for a preliminary ruling from the Oberster
und Markensenat — Austria) — Verein
Patent-
v Bundesvereinigung Kameradschaft
Radetzky-Orden

‘Feldmarschall Radetzky’

(Case C-442/07) (1)

(Trade marks — Directive 89/104/EEC — Article 12 —
Revocation — Marks registered by a non-profit-making asso-
ciation — Concept of ‘genuine use’ of a trade mark —
Charitable activities)

(2009/C 44/28)

Language of the case: German

Referring court

Oberster Patent- und Markensenat

Parties to the main proceedings

Applicant: Verein Radetzky-Orden

Defendant: Bundesvereinigung Kameradschaft
Radetzky’

‘Feldmarschall

Re:

Reference for a preliminary ruling — Oberster Patent- und
Markensenat — Interpretation of Article 12(1) 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) — Trade marks used on business papers, writing

C 44/18

EN

Official Journal of the European Union

21.2.2009

paper, on advertising material and in the form of badges by a
non-profit-making association in the context of its activity of
seeking to preserve military traditions and collecting and distri-
buting donations — Classification of that use as ‘genuine use’
capable of preserving the rights attached to the mark?

Operative part of the judgment

Article 12(1) of First Council Directive 89/104/EEC of 21 December
1988 to approximate the laws of the Member States relating to trade
marks is to be construed as meaning that a trade mark is put to
genuine use where a non-profit-making association uses the trade
mark,
forth-
coming events, on business papers and on advertising material and
where the association's members wear badges featuring that trade mark
when collecting and distributing donations.

in its relations with the public,

in announcements of

(1) OJ C 283, 24.11.2007.

Judgment of the Court (Second Chamber) of 22 December
2008 — Isabel Clara Centeno Mediavilla, Delphine Fumey,
Eva Gerhards, Iona M. S. Hamilton, Raymond Hill, Jean
Huby, Patrick Klein, Domenico Lombardi, Thomas Millar,
Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson,
François-Xavier Rouxel, Marta Silva Mendes, Peter van den
Hul, Fritz Von Nordheim Nielsen, Michaël Zouridakis v
Commission of the European Communities, Council of the
European Union

(Case C-443/07 P) (1)

(Appeal — Staff Regulations of officials — Plea of illegality
of Article 12(3) of Annex XIII on the classification of officials
recruited after 1 May 2004 — Consulting of the Staff Regu-
lations Committee — No infringement of acquired rights or of
the principle of equal treatment)

(2009/C 44/29)

Language of the case: French

Parties

Appellants: Isabel Clara Centeno Mediavilla, Delphine Fumey, Eva
Gerhards,
Jean Huby,
Iona M. S. Hamilton, Raymond Hill,
Patrick Klein, Domenico Lombardi, Thomas Millar, Miltiadis
Moraitis, Ansa Norman Palmer, Nicola Robinson, François-
Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von
Nordheim Nielsen, Michaël Zouridakis
(represented by: G.
Vandersanden and L. Levi, avocats)

Other parties to the proceedings: Commission of the European
Communities, (represented by: J. Currall and H. Krämer, acting
as Agents), Council of the European Union (represented by:
M. Arpio Santacruz and M. Bauer, acting as Agents)

Re:

Appeal brought against the judgment of
the Court of First
Instance (Fourth Chamber, Extended Composition) of 11 July
2007 in Case T-58/05 Centeno Mediavilla and Others v Commis-
sion, by which the Court of First Instance dismissed the actions
of the appellants seeking annulment of the decisions appointing
them probationary officials, in so far as they fix their grade clas-
sification in accordance with the transitional provisions in
Article 12(3) of Annex XIII to the Staff Regulations of officials
of
the European Communities, as amended by Regulation
(EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124,
p. 1) — Implications of the entry into force of the new Staff
Regulations for the situation of persons on a list of suitable
candidates or a reserve list before the date of entry into force of
those regulations, namely 1 May 2004, but recruited after that
date — Principles of
legitimate
expectations and equal treatment — Scope of the duty to give
reasons

legal certainty, protection of

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Ms Centeno Mediavilla, Ms Fumey, Ms Gerhards,
Ms Hamilton, Mr Hill, Mr Huby, Mr Klein, Mr Lombardi,
Mr Millar, Mr Moraitis, Ms Palmer, Ms Robinson, Mr Rouxel,
Ms Silva Mendes, Mr van den Hul, Mr Von Nordheim Nielsen
and Mr Zouridakis to pay the costs of the appeal;

3. Orders the Council of the European Union to bear its own costs.

(1) OJ C 22, 26.1.2008.

Judgment of the Court (Second Chamber) of 11 December
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-480/07) (1)

(Failure of a Member State to fulfil its obligations — Directive
2000/59/EC — Port reception facilities for ship-generated
waste and cargo residues — Failure to have developed, imple-
mented or approved waste reception and handling plans for all
ports)

(2009/C 44/30)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz,
acting as Agent)