Case C-558/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 17 December 2008 — Portakabin Limited and Portakabin BV v Primakabin BV
Date: 2008-12-17
Institutions: Court of Justice
Subjects: Internet, Netherlands, advertising, interpretation of the law, provision of services, search engine

C 55/10

EN

Official Journal of the European Union

7.3.2009

Appeal brought on 12 December 2008 by Agrar-Invest-
Tatschl GmbH against the judgment delivered by the Court
of First Instance (Eighth Chamber) on 8 October 2008 in
Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of
the European Communities

(Case C-552/08 P)

(2009/C 55/16)

Language of the case: German

Parties

Appellant: Agrar-Invest-Tatschl GmbH (represented by: U.
Schrömbges and O. Wenzlaff, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the contested judgment delivered by the Court of
First Instance of the European Communities on 8 October
2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commis-
sion;

Article 220(2)(b) of
It submits that the
the Customs Code.
Court's interpretation is wrong in law in that, according to the
Court, the Commission notice published in the Official Journal
concerning doubt as to the proper application of the preferential
arrangements by the beneficiary country has the effect of
excluding good faith even where, as in the present case, the rele-
vant certificates issued in connection with the securing of prefer-
ential treatment were subject after publication of the warning
notice to a verification procedure that confirmed their authenti-
city and accuracy.

The Court of First Instance fails to recognise that the effect of a
warning notice that is laid down in the fifth subparagraph of
Article 220(2)(b) of the Customs Code is restricted by the prin-
ciple under which decisions of third-country customs authorities
within the framework of a system of administrative cooperation
should be recognised. The provision of the Customs Code at
issue involves a legal fiction of bad faith which is rebuttable,
indeed — as in the present case — precisely by carrying out a
verification procedure. The appellant's good faith is therefore
restored by the subsequent confirmation of the authenticity and
accuracy of the movement certificates, that is to say, the appel-
lant could rely on the fact that the grounds for doubt on the
basis of which the Commission's warning notice was published
were removed in the course of the verification procedure. The
appellant's good faith is therefore dependent not on proper
the movement certificates at issue by the Croatian
issue of
authorities but on the proper verification of those certificates by
the customs authorities on the basis of the doubts, disclosed by
the Commission's warning notice, as to whether they were
properly issued.

— in accordance with the first claim set out in the application
of 22 February 2007 in Case T-51/07 before the Court of
First
annul
Article 1(2) and Article 1(3) of Commission Decision
C(2006) 5789 final (REC 05/05) of 4 December 2006.

the European Communities,

Instance of

Pleas in law and main arguments

This appeal contests the judgment of the Court of First Instance
which dismissed the appellant's action challenging Commission
Decision C(2006) 5789 final of 4 December 2006 on the
subsequent entering in the accounts of import duties owed by
the appellant for the import of sugar from Croatia.

The Court of First Instance's basis for dismissing the appellant's
action was the absence of good faith, one of the four require-
ments that must all be met if import duties are not to be subse-
quently entered in the accounts. The Court stated that, under
the fifth subparagraph of Article 220(2)(b) of Council Regu-
lation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (‘the Customs Code’), the person
liable cannot plead his good faith if the European Commission,
as in the case in point, has published in the Official Journal a
notice to importers stating that there are grounds for doubt
concerning the proper application of the preferential arrange-
ments by the beneficiary country. Nor, according to the Court
of First Instance, is it material that the appellant acted in good
faith with regard to the subsequent confirmation of the authen-
ticity and accuracy of the movement certificates, since it in any
event did not act in good faith when the imports took place.

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden lodged on 17 December 2008 — Portakabin
Limited and Portakabin BV v Primakabin BV

(Case C-558/08)

(2009/C 55/17)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellants in cassation: Portakabin Limited and Portakabin BV

The appellant bases its appeal on an incorrect interpretation by
the fifth subparagraph of
the Court of First

Instance of

Respondent in cassation: Primakabin BV

7.3.2009

EN

Official Journal of the European Union

C 55/11

Questions referred

1 (a) Where a trader in certain goods or services (‘the adver-
tiser’) avails himself of the possibility of submitting to
the provider of an internet search engine an adword
[when advertising via the internet, it is possible to pay to
use ‘adwords’ on search engines such as Google. When
such an adword is keyed into the search engine, a refer-
ence to the advertiser's website appears either in the list
of webpages found, or as an advertisement on the right-
hand side of the page showing the results of the search,
under the heading ‘Sponsored links’] which is identical to
trade mark registered by another person (‘the
a
proprietor’) in respect of similar goods or services, and
the adword submitted — without this being visible to
the search engine user — results in the internet user who
enters that word finding a reference to the advertiser's
website in the search engine provider's list of search
results, is the advertiser ‘using’ the registered trade mark
within the meaning of Article 5(1)(a) of Directive
89/104/EEC (1)?

(b) Does it make a difference in that regard whether the

reference is displayed

— in the ordinary list of webpages found; or

— in an advertising section identified as such?

(c) Does it make a difference in that regard

— whether, even within the reference notification on
the search engine provider's webpage, the advertiser
is actually offering goods or services that are identical
to the goods or services covered by the registered
trade mark; or

— whether the advertiser is in fact offering goods or
services which are identical to the goods or services
covered by the registered trade mark on a webpage of
his own, which internet users (as referred to in Ques-
tion 1(a)) can access via a hyperlink in the reference
on the search engine provider's webpage?

2. If and in so far as the answer to Question 1 is in the
affirmative, can Article 6 of Directive 89/104, in particular
Article 6(1)(b) and (c),
in the proprietor being
result
precluded from prohibiting the use described in Question 1
and, if so, under what circumstances?

3. In so far as the answer to Question 1 is in the affirmative, is
Article 7 of Directive 89/104 applicable where an offer by
the advertiser, as indicated in Question 1, relates to goods
which have been marketed in the European Community
under the proprietor's trade mark referred to in Question 1
or with his permission?

4. Do the answers to the foregoing questions apply also in the
case of adwords, as referred to in Question 1, submitted by
the advertiser, in which the trade mark is deliberately repro-
duced with minor spelling mistakes, making searches by the
internet-using public more effective, assuming that the trade
mark is reproduced correctly on the advertiser's website?

5. If and in so far as the answers to the foregoing questions
mean that the trade mark is not being used within the

meaning of Article 5(1) of Directive 89/104, are the Member
States entitled,
in relation to the use of adwords such as
those at issue in this case, simply to grant protection —
under Article 5(5) of that directive, in accordance with provi-
sions in force in those States relating to the protection
against the use of a sign other than for the purposes of
distinguishing goods or services — against use of that sign
which, in the opinion of the courts of those Member States,
without due cause takes unfair advantage of, or is detri-
mental to, the distinctive character or the repute of the trade
mark, or do Community-law parameters associated with the
answers to the foregoing questions apply to national courts?

(1) First Council Directive of 21 December 1988 to approximate the
laws of the Member States relating to trade marks (OJ 1989 L 40,
p. 1).

Action brought on 17 December 2008 — Commission of
the European Communities v Kingdom of Spain

(Case C-560/08)

(2009/C 55/18)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán, D. Recchia and J.-B. Laignelot,
acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that the Kingdom of Spain has failed to fulfil its obli-

gations,

— in accordance with Article 2(1), Article 3(1) and (2) as
the case may be, Article 4 and Article 5 of Council
Directive 85/337/EEC (1) of 27 June 1985 on the assess-
ment of the effects of certain public and private projects
on the environment in relation to separate projects for
widening and/or upgrading the M-501 road corre-
sponding to sections 1, 2 and 4;
in accordance with
Article 6(2)
and Article 8 of Council Directive
85/337/EEC in relation to separate projects for widening
and/or upgrading the M-501 road corresponding to
sections 2 and 4; and in accordance with Article 9 of
Directive 85/337/EEC in relation to separate projects for
widening and/or upgrading the M-501 road corre-
sponding to sections 1, 2 and 4;