Case C-582/08: Action brought on 29 December 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
Date: 2008-12-29
Institutions: Court of Justice
Subjects: European Community, Northern Ireland, United Kingdom, VAT, action for failure to fulfil an obligation, tax system

21.3.2009

EN

Official Journal of the European Union

C 69/23

Questions referred

Action brought on 29 December 2008 — Commission of
the European Communities v United Kingdom of Great
Britain and Northern Ireland

1. Is Article

21(1)(a)

of Commission Regulation

(EC)
No 874/2004 of 28 April 2004 laying down public policy
rules concerning the implementation and functions of the .
eu Top Level Domain and the principles governing registra-
tion (1) to be interpreted as meaning that a right within the
meaning of that provision exists,

(a) if, without any intention to use it for goods or services, a
trade mark is acquired only for the purpose of being able
to register in the first phase of phased registration a
domain corresponding to a German-language generic
term?

Parties

(Case C-582/08)

(2009/C 69/41)

Language of the case: English

(b) if the trade mark underlying the domain registration and
coinciding with a German-language generic term deviates
from the domain in so far as the trade mark contains
special characters which were eliminated from the
domain name although the special characters were
capable of being rewritten and their elimination has the
effect that the domain differs from the trade mark in a
way which excludes any likelihood of confusion?

2. Is Article 21(1)(a) of Regulation (EC) No 874/2004 to be
interpreted as meaning that a legitimate interest exists only
in the cases mentioned in Article 21(2)(a) to (c)?

If that question is answered in the negative:

3. Does

a

legitimate

interest within the meaning

of
Article 21(1)(a) of Regulation (EC) No 874/2004 exist if the
domain holder intends to use the domain — coinciding with
a German-language generic term — for a thematic internet
portal?

If questions (1) and (3) are answered in the affirmative:

4. Is Article 21(3) of Regulation (EC) No 874/2004 to be inter-
preted as meaning that only the circumstances mentioned in
subparagraphs (a) to (e) are capable of establishing bad faith
within the meaning of Article 21(1)(b) of Regulation (EC)
No 874/2004?

If that question is answered in the negative:

5. Does bad faith within the meaning of Article 21(1)(b) of
Regulation (EC) No 874/2004 exist if a domain was regis-
tered in the first phase of phased registration on the basis of
a trade mark, coinciding with a German-language generic
term, which the domain holder acquired only for
the
purpose of being able to register the domain in the first
phase of phased registration and thereby to pre-empt other
including the holders of rights to the
interested parties,
mark?

(1) OJ 2004 L 162, p. 40.

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal, M. Afonso, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland

The applicant claims that the Court should:

the European Community,

— declare that by denying recovery of input tax in respect of
certain transactions carried out by taxable persons not estab-
lished in the territory of
the
United Kingdom has failed to comply with its obligations
under Articles 169, 170 and 171 of Council Directive
2006/112/EC (1) of 28 November 2006 on the common
system of value added tax and with Article 2(1) of the Thir-
teenth VAT Directive 86/560/EEC (2) of 17 November 1986
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 Com-
munity territory;

— order United Kingdom of Great Britain and Northern Ireland

to pay the costs.

Pleas in law and main arguments

and

The Commission submits that Article 2(1) of the Thirteenth
VAT Directive cannot be interpreted as excluding the refund of
VAT charged on goods or services used for the purposes of the
insurance
in
Article 17(3)(c) of the Sixth VAT directive (3). The Commission
therefore takes the view that the United Kingdom legislation, in
so far as it denies the right to a refund of that VAT to taxable
persons not established in the territory of the European Com-
munity, is in breach of Community law.

transactions mentioned

financial

(1) OJ L 347, p. 1.
(2) OJ L 326, p. 40.
(3) OJ 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.