Source: EURLEX
Language: en
Format: md

C 251/6 EN Official Journal of the European Union 18.10.2003

deprived of the benefit of the inter-service meeting provided
for in the regulations had not adversely affected him. In the
absence of that meeting, the applicant was unable either to
present his case in an appropriate manner before a group of
representatives of the Commission or to know what probative
documents the Commission considered to be lacking.

**Reference for a preliminary ruling by the Court of Appeal**
**(England & Wales) (Civil Division) by order of that court**
**dated 25 July 2003, in the case of Société de produits**
**Nestlé SA against Mars UK Ltd**

**(Case C-353/03)**

(2003/C 251/11)

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) dated 25 July 2003, which
was received at the Court Registry on 18 August 2003, for a
preliminary ruling in the case of Société de produits Nestlé SA
against Mars UK Ltd on the following question:

Whether the distinctive character of a mark referred to
in Article 3(3) of Council Directive 89/104/EEC ( [1] ) and
Article 7(3) of Council Regulation 40/94 ( [2] ) may be acquired
following or in consequence of the use of that mark as part of
or in conjunction with another mark?

( [1] ) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks OJ L 040, 11.02.1989, p. 1-7.
( [2] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark OJ L 011, 14.01.1994, p. 1-36.

**Reference for a preliminary ruling by the High Court of**
**Justice (England & Wales), Chancery Division, by order of**
**that court dated 28 July 2003, in the case of Optigen Ltd**
**against Commissioners of Customs and Excise**

**(Case C-354/03)**

(2003/C 251/12)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 28 July
2003, which was received at the Court Registry on 18 August

2003, for a preliminary ruling in the case of Optigen Ltd
against Commissioners of Customs and Excise on the
following questions:

A. Under the common system of VAT, and in the light of
Council Directives 67/227/EEC ( [1] ) and 77/388/EEC ( [2] ), is
the entitlement of a trader to credit for a payment in
respect of VAT under a transaction to be judged by
reference to:

(1) only the particular transaction to which the trader
was a party including the trader's purposes in entering into it, or

(2) the totality of transactions, including subsequent
transactions, making up a circular chain of supply
of which the particular transaction forms part
including the purposes of other participants in the
chain of which the trader has no knowledge and/or
means of knowledge, and/or

(3) the fraudulent acts and intention, whether arising
prior or subsequent to the particular transaction, of
other participants in the circular chain of whose
involvement the trader is unaware and of whose
acts and intentions the trader has no knowledge
and/or means of knowledge, or

(4) some other, and if so what, criteria?

B. Does the exclusion from the VAT regime of transactions
entered into by an innocent party, but which form links in
a carousel fraud by others, infringe the general principles
of proportionality, equal treatment or legal certainty?

( [1] ) First Council Directive 67/227/EEC of 11 April 1967 on the
harmonisation of legislation of Member States concerning turnover
taxes OJ P 071, 14.04.1967, p. 1301-1303.
( [2] ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform bassis of
assessment OJ L 145, 13.06.1977, p. 1-40.