Case C-581/08: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs
Date: 2008-12-29
Institutions: Court of Justice
Subjects: United Kingdom, appeal, assessment of prices, gift item, sampling

7.3.2009

EN

Official Journal of the European Union

C 55/17

Appeal brought on 24 December 2008 by Messer Group
GmbH against the judgment of the Court of First Instance
(First Chamber) delivered on 15 October 2008 in Case
T-305/06 Air Products and Chemicals Inc. v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM)

(Case C-579/08 P)

(2009/C 55/27)

Language of the case: English

Reference for a preliminary ruling from VAT and Duties
Tribunal, London (United Kingdom) made on 29 December
2008 — EMI Group Ltd v The Commissioners for Her
Majesty's Revenue & Customs

(Case C-581/08)

(2009/C 55/28)

Language of the case: English

Parties

Appellant: Messer Group GmbH (represented by: W. Graf v.
Schwerin and J. Schmidt, Attorneys at law)

Other parties to the proceedings: Air Products and Chemicals Inc.,
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM)

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: EMI Group Ltd

Form of order sought

The appellant claims that the Court should:

Defendant: The Commissioners for Her Majesty's Revenue &
Customs

— Set aside the judgment of the Court of First Instance of
15 October 2008 in joined cases T-305/06, T-306/06 and
T-307/06 and dismiss the action

Questions referred

— Order the applicant to pay the costs, including those of the

appellant and intervener,

(a) How is the last sentence of Article 5.6 of the Sixth Direc-
tive (1) to be interpreted in the context of the circumstances
of the present case?

alternatively,

— Set aside the judgment of the Court of First Instance of
15 October 2008 in joined cases T-305/06, T-306/06 and
T-307/06;

— Refer the case back to the Court of First Instance;

— Reserve the costs.

Pleas in law and main arguments

The applicant submits that the Court of First Instance failed to
apply correctly the criteria laid down for the proper implemen-
tation of Article 8(1)(b) of Regulation (EC) No 40/94 (1).

(b) In particular, what are the essential characteristics of a
sentence of

the last

‘sample’ within the meaning of
Article 5.6 of the Sixth Directive?

(c) Is a Member State permitted to limit the interpretation of
in the last sentence of Article 5.6 of the Sixth

‘sample’
Directive to-

(i) an industrial sample in a form not ordinarily available
for sale to the public given to an actual or potential
customer of the business (until 1993),

(ii) only one, or only the first of a number of samples given
by the same person to the same recipient where those
samples are identical or do not differ in any material
respect from each other (from 1993)?

Furthermore the applicant submits that the contested decision
of the Court of First Instance is based on a substantive inaccu-
racy in its findings with respect to the determination of the rele-
vant public.

(d) Is a Member State permitted to limit the interpretation of
‘gifts of small value’ in the last sentence of Article 5.6 of the
Sixth Directive in such a way as to exclude-

(1) Council Regulation (EC) No 40/94 of 20 December 2003 on the

Community trade mark (OJ L 11, p. 1).

(i) a gift of goods forming part of a series or succession of
gifts made to the same person from time to time (to
October 2003),

(ii) any business gifts made to the same person in any
12-month period where the total cost exceeds £50
(October 2003 onwards)?

C 55/18

EN

Official Journal of the European Union

7.3.2009

(e) If the answer to question (c)(ii) above or any part of ques-
tion (d) above is ‘yes’, where a taxable person gives a similar
or identical gift of recorded music to two or more different
individuals because of their personal qualities in being able
to influence the level of exposure the artist in question
receives, is the Member Stale permitted to treat those items
as given to the same person solely because those individuals
are employed by the same person?

(f) Would the answers to questions (a) to (e) above be affected
by the recipient being, or being employed by, a fully taxable
person, who would be (or would have been) able to deduct
the goods
tax payable on the provision of
any input
consisting of the sample?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ L 145, p. 1).

Reference for a preliminary ruling from the Cour d'appel
de Liège (Belgium) lodged on 29 December 2008 — Real
Madrid Football Club, Zinedine Zidane, David Beckham,
Raul Gonzalez Blanco, Ronaldo Luiz Nazario de Lima, Luis
Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D., Victor
Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V.,
Imari BV, Juventus Football Club SPA v Sporting Exchange
Ltd, William Hill Credit
Limited, Victor Chandler
(International) Ltd, BWIN International Ltd (Betandwin),
Ladbrokes Betting and Gaming Ltd, Ladbroke Belgium S.A.,
Global
Internet Opportunity

Entertainment

Ltd,

Entertainment Ltd (Unibet)

(Case C-584/08)

(2009/C 55/29)

Language of the case: French

Referring court

Cour d'appel de Liège

Parties to the main proceedings

Appellants: Real Madrid Football Club, Zinedine Zidane, David
Beckham, Raul Gonzalez Blanco, Ronaldo Luiz Nazario de
Lima, Luis Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D.,
Victor Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V.,
Imari BV, Juventus Football Club SPA

Respondents: Sporting Exchange Ltd, William Hill Credit Limited,
Victor Chandler (International) Ltd, BWIN International Ltd
(Betandwin), Ladbrokes Betting and Gaming Ltd, Ladbroke
Belgium S.A., Internet Opportunity Entertainment Ltd, Global
Entertainment Ltd (Unibet)

Questions referred

in the
The questions relate to the interpretation to be given,
specific field of the internet, to Article 5(3) of Council Regu-
lation (EC) No 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters (1).

Where, as in the present case, the alleged harm is caused by
websites and

(a) none of the companies being sued, which run the websites

in question, has its company seat in Belgium,

(b) none of the websites in question is hosted in Belgium,

(c) none of the claimants is domiciled in Belgium,

(d) the betting websites are available to Belgian internet users,
who can place their bets on those sites, to the same extent
as they are available to internet users in other contracting
States since they are ‘.com’ websites which have the purpose
of extending their market to the whole of Europe, and they
do not have the extension ‘.be’ which is specific to Belgium,

(e) those websites are available in a number of

languages
without the two most commonly used languages in Belgium
always being among them,

(f) those websites offer, inter alia, bets on Belgian matches, in

the same way as for foreign championships,

(g) the use of a particular technology or canvassing technique

aimed at the Belgian public has not been proved,

(h) the number of bets placed by the Belgian public is entirely
marginal in comparison with the total number of bets taken
by those sites, since, according to the figures submitted by
the bookmaking companies for 2005, which were not
disputed, all the Belgian betting on football matches repre-
sents less than 0.25 % of the bets taken on the websites
‘bwin.com’,
‘ladbrokes.com’,
‘sportingbet’, and ‘miapuesta’, while ‘vcbet.com’ refers to
40 Belgian bettors among all the bets placed with it,

‘willhill.com’,

‘betfair.com’,

1. should it be held that the alleged harm occurred or is
liable to occur in Belgium, so that the Belgian courts
have jurisdiction to hear the actions relating to that
harm because the websites in question are directed, inter
alia, at the Belgian public?

2. or should it be held that the alleged harm occurred or is
liable to occur in Belgium, so that Belgian courts have
jurisdiction to hear the actions relating to that harm,
only if the existence of a sufficient, substantial or mean-
ingful connection between the tortious events pleaded
and Belgian territory is established?

3.

if so, what are the relevant criteria to be taken into
consideration in assessing whether such a connecting
factor exists?

(1) OJ 2001, L 12, p. 1.