Source: EURLEX
Language: en
Format: md

C 56/8 EN Official Journal of the European Communities 2.3.2002

f) The Commission also considers that, by reason of its of the dried fodder. According to the Commission, it must also
failure to respect the requirements of Article 9 and 10 of be considered that there is a supply for consideration within
the Directive regarding permits, Ireland is not respecting the meaning of the Sixth Directive, because the recipient of aid
Article 13 of the Directive, which requires establishments is a fodder-processing undertaking which sells fodder to third
or undertakings carrying waste operations to be subject parties. In Finland, however, value added tax is not charged on
to periodic inspection by the authorities, or Article 14 of such aid.
the Directive, which requires such establishments or
undertakings to keep records and to make this information available on request by the competent authorities. ( [1] ) 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 L 145 of 13.06.1977, p. 1).
( [1] ) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ ( [2] ) (OJ L 63 of 21.03.1995, p. 1).
L 194, 25.07.1975, p. 39).
( [2] ) OJ L 078, 26.03.1991, p. 32.

**Appeal brought on 24 December 2001 (fax: 20.12.2001)**
**by the Office for Harmonisation in the Internal Market**
**Action brought on 21 December 2001 by the Commission** **(Trade Marks and Designs) against the judgment delivered**
**of the European Communities against the Republic of** **on 3 October 2001 by the Fourth Chamber of the Court**
**Finland** **of First Instance of the European Communities in Case**
**T-140/00 between Zapf Creation AG and the Office for**
**Harmonisation in the Internal Market (Trade Marks and**
**(Case C-495/01)** **Designs)**

(2002/C 56/15) **(Case C-498/01 P)**

(2002/C 56/16)

An action against the Republic of Finland was brought
before the Court of Justice of the European Communities on
21 December 2001 by the Commission of the European
Communities, represented by E. Traversa and I. Koskinen, with An appeal against the judgment delivered on 3 October 2001
an address for service in Luxembourg. by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-140/00 between Zapf
Creation AG and the Office for Harmonisation in the Internal
The Commission claims that the Court should: Market (Trade Marks and Designs) was brought before the
Court of Justice of the European Communities on 24 December
2001 (fax: 20.12.2001) by the Office for Harmonisation in
1. Declare that the Republic of Finland is in breach of
the Internal Market (Trade Marks and Designs), represented by
Article 11 of the Sixth Council Directive 77/388/EEC of
Detlev Schennen, Head of Unit in the Legal Department, and
17 May 1977 on value added tax( [1] ) by failing to charge
Carina Røhl Søberg, administrator in the Legal Department of
value added tax on aid paid under Council Regulation
the Office for Harmonisation in the Internal Market (Trade
(EC) No 603/95 of 21 February 1995 on the common
Marks and Designs).
organisation of the market in dried fodder( [2] );

2. Order the Republic of Finland to pay the costs. The appellant claims that the Court should:

(1) dismiss the application of Zapf Creation AG;

_Pleas in law and main arguments_
(2) order Zapf Creation AG (as applicant in the proceedings
before the Court of First Instance) to pay the costs of the
proceedings before the Court of First Instance;
According to Article 11A(1)(a) of the Sixth VAT Directive, the
taxable amount is the consideration payable for the supply,
(3) set aside the judgment of the Court of First Instance of
which is to include ‘subsidies directly linked to the price’ of the
3 October 2001 in Case T-140/00 ‘New Born Baby’( [1] );
supply. Since the Community aid granted for the processing
and sale of dried fodder is paid on the basis of the amount of
dried fodder sold and treated, the aid must, in the Commission’s (4) order Zapf Creation AG to pay the costs of the proceedopinion, be considered to have a direct influence on the price ings before the Court of Justice.

2.3.2002 EN Official Journal of the European Communities C 56/9

_Pleas in law and main arguments_ **Action brought on 21 December 2001 by the Commission**
**of the European Communities against the Kingdom of**
— **Spain**
Infringement of Article 7(1)(c) of Council Regulation No
40/94 in respect of goods classed as ‘dolls to play with’:
the contested judgment does not take sufficient account **(Case C-500/01)**
of the difference between indications of origin (valid
marks) and those of a purely informative nature (indications falling within Article 7(1)(c)). The Court of (2002/C 56/17)
First Instance erred in law by reducing the scope of
Article 7(1)(c) to the descriptive indication of the product
itself (‘that the sign in question is descriptive of the dolls
themselves’) and by excluding from the scope of that
provision the description of the dolls’ characteristics An action against the Kingdom of Spain was brought before the
(‘descriptive of that which the dolls represent’). In Court of Justice of the European Communities on 21 December
addition, the Court of First Instance erred in law in 2001 by the Commission of the European Communities,
finding that ‘the persons targeted, when making their represented by Stefan Rating, of its Legal Service, with an
purchasing decision, [must] conflate the toy and what it address for service in Luxembourg at the office of Luis Escobar
represents’; this requires a certain causality between the Guerrero, of its Legal Service, Wagner Centre, Kirchberg.
descriptive indication and the purchasing decision which
has nothing to do with Article 7(1)(c). The Court of First
Instance disregarded the fact that numerous descriptive
indications describe not the kind of product but what it The applicant claims that the Court should:
represents or its content; that is the general position as
regards toys, but it also applies in respect of books and
(1) declare that, by failing to comply with the provisions of
magazines, video games, etc.
Article 4c of Directive 90/388/EEC( [1] ), as amended by
Directive 96/19/EC( [2] ), the Kingdom of Spain has failed

—
Infringement of Article 7(1)(c) of Council Regulation No to fulfil its obligations under Article 249 EC;
40/94, in so far as concerns ‘accessories for dolls in the
form of playthings’: the Court of First Instance misapplied
the principle of trade-mark law — in itself correct — that (2) order the Kingdom of Spain to pay the costs.
the protectability of a mark is to be considered by
reference to the goods in respect of which the application
is made, inasmuch as it wrongly analysed the goods
‘accessories for dolls in the form of playthings’ separately
from the rest of the classification. The indication ‘access- _Pleas in law and main arguments_
ories for dolls in the form of playthings’ is so manifestly
related to the principal goods — ‘dolls to play with’ —
that it must inevitably share the same fate, in terms of
trade-mark law, as that meted out to those principal The Commission considers that it will not be possible, at least
goods. as regards Telefo´nica, for subscription charges to be aligned
with costs prior to the beginning of 2003. This results from
the practical limitations imposed by the Spanish system of

—
Infringement of Article 12 of Council Regulation No maximum price limits, which prevent Telefo´nica from making
40/94 and of the judgment in BMW v Deenik( [2] ), in so more rapid changes to the amount of the subscription charge.
far as concerns ‘accessories for dolls in the form of The Commission further maintains that it can hardly be argued
playthings’. that a re-balancing spread over a period of some seven years
meets the criterion of maximum possible rapidity laid down
— by the directive, and that the re-balancing has proceeded in
Infringement of Article 7(1)(b) of Council Regulation No
parallel with the opening-up to competition of the Spanish
40/94: since, in the present case, the refusal pursuant to
telecommunications market.
Article 7(1)(b) on the ground of insufficient distinctive
character was based on the same arguments as those
applying in respect of Article 7(1)(c), it is logical that the
outcome of the present case can only be uniform, i.e. the
opposite of that contained in the contested judgment. ( [1] ) Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ L 192
of 24.7.1990, p. 10).
( [2] ) Commission Directive 96/19/EC of 13 March 1996 amending

Directive 90/388/EEC with regard to the implementation of
( [1] ) Not yet published in the European Court Reports.
full competition in telecommunications markets (OJ L 74 of
( [2] ) Judgment of the Court of Justice of 23 February 1999 in Case
13.3.1996, p. 13).
C-63/1997, [1999] ECR I-925.