CELEX: C1999/188/19
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-112/99: Reference for a preliminary ruling by the Landgericht Düsseldorf by order of that court of 19 January 1999 in the case of Toshiba Europe GmbH against Katun Germany GmbH

C 188/8                 EN                     Official Journal of the European Communities                                            3.7.1999
5. The solution opted for by the contested decision, based on             Reference for a preliminary ruling by the Tribunal Admin-
     entirely irrelevant criteria, breaches the principles of social      istratif de Pau (First Chamber) by judgment of that
     cohesion and of solidarity among the Member States. It               court of 23 March 1999 in the case of Association
     further breaches the principle of non-discrimination, given          basco-béarnaise des opticiens indépendants against Préfet
     that the reduction of the aid already granted to Italy was           des Pyrénées-Atlantiques in the presence of Mutualité
     greater than that applied to any other Member State.                 ‘Adour Mutualité’ and Mutualité Française Union des
                                                                                                 Pyrénées-Atlantiques
6. The applicant Government further submits that the Com-
     mission’s conduct is contradictory and is ultra vires.                                          (Case C-109/99)
     Moreover, the contested decision allegedly infringes
     Article 2 of Regulation No 1866/90, (4) as amended by
     Article 1 of Regulation No 2745/94. (5)                                                         (1999/C 188/18)
                                                                          Reference has been made to the Court of Justice of the
(1) Council Regulation (EEC) of 19 December 1988 (OJ 1988 L 374,          European Communities by judgment of the Tribunal Adminis-
    p. 1).                                                                tratif de Pau (Administrative Court, Pau) of 23 March 1999,
(2) Council Regulation (EEC) of 20 July 1993 (OJ 1993 L 193, p. 20).      received at the Court Registry on 29 March 1999, for a
(3) Council Regulation (EEC) of 24 June 1993 (OJ 1988 L 185, p. 9).
(4) Council Regulation (EEC) of 2 July 1990 (OJ 1990 L 170, p. 36).
                                                                          preliminary ruling in the case of Association basco-béarnaise
(5) Council Regulation (EEC) of 10 November 1994 (OJ 1994 L 290,          des opticiens indépendants against Préfet des Pyrénées-
    p. 4).                                                                Atlantiques in the presence of Mutualité ‘Adour Mutualité’
                                                                          and Mutualité Française Union des Pyrénées-Atlantiques. The
                                                                          Tribunal Administratif de Pau (First Chamber) requests a ruling
                                                                          from the Court of Justice of the following two questions:
                                                                          (1) Must Article 8(1)(b) of Council Directive 73/239/EEC (1)
                                                                               be interpreted as precluding the provisions of
                                                                               Articles L 123-1 and L 123-2 of the French Mutuality
                                                                               Code, which allow mutual benefit societies whose sole
Reference for a preliminary ruling by the High Court                           business is that of insurance to create between them
of Justice (England & Wales), Queen’s Bench Division,                          mutual benefit bodies which have legal personality and
Divisional Court, by order of that court of 2 September                        legal autonomy and engage in commercial business in the
1998, in the case of Commissioners of Customs and                              optical sector?
        Excise against Cantor Fitzgerald International
                                                                          (2) If the provisions of the directive are incompatible with
                                                                               French law, is the prohibition of commercial business
                          (Case C-108/99)                                      imposed on the mutual benefit body set up by mutual
                                                                               benefit societies whose sole business is that of insurance
                         (1999/C 188/17)                                       general and absolute, or is it open to the competent
                                                                               authorities of the Member State to define the conditions
                                                                               under which and the spheres in which a commercial
Reference has been made to the Court of Justice of the                         business may be pursued?
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division, Divisional
Court of 2 September 1998, which was received at the Court                (1) Of 24 July 1973 on the coordination of laws, regulations and
Registry on 30 March 1999, for a preliminary ruling in the                    administrative provisions relating to the taking-up and pursuit of
case of Commissioners of Customs and Excise against Cantor                    the business of direct insurance other than life insurance (OJ 1973
Fitzgerald International, on the following question:                          L 228 p. 3).
Following the decision of the Court in Case C-63/92 (Lubbock
Fine & Co v Customs and Excise Commissioners); (1) does
Article 13B(b) of the Sixth VAT Directive (2) exempt from VAT
a supply made by a person (‘the person’) who does not have
any interest in immovable property, where the person agrees
to accept an assignment of a lease of that immovable property
                                                                          Reference for a preliminary ruling by the Landgericht
from a lessee, and the lessee pays that person a sum of money
                                                                          Düsseldorf by order of that court of 19 January 1999 in
in return for that person taking the assignment of the lease in
                                                                          the case of Toshiba Europe GmbH against Katun Germany
that immovable property?
                                                                                                          GmbH
(1) ECR 1993 p. I-6665.                                                                              (Case C-112/99)
(2) Directive 77/388/EEC of the Council 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                                       (1999/C 188/19)
    basis of assessment (OJ L 145, 13.06.77, p. 1).
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Landgericht Düsseldorf
                                                                          (Higher Regional Court, Düsseldorf), Fourth Civil Chamber, of
 ---pagebreak--- 3.7.1999              EN                       Official Journal of the European Communities                                          C 188/9
19 January 1999 received at the Court Registry on 1 April                 Reference for a preliminary ruling by the Verwaltungsger-
1999 for a preliminary ruling in the case of Toshiba Europe               ichtshof, Vienna, Austria, by order of that court of
GmbH against Katun Germany GmbH on the following                          17 March 1999 in the case of Dr Herta Schmid as
question:                                                                 insolvency administrator of the assets of the company
                                                                          P.P. Handels GmbH (in liquidation) against Finanzlandes-
                                                                             direktion für Wien, Niederösterreich und Burgenland
1. Is an advertisement by a supplier of replacement parts and
    user materials for an appliance manufacturer’s product to                                      (Case C-113/99)
    be regarded as comparative advertising within the meaning
    of Article 2(2a) of the directive if the advertisement states                                  (1999/C 188/20)
    the appliance manufacturer’s product numbers (OEM
    numbers) for the relevant original replacement parts                  Reference has been made to the Court of Justice of the
    and consumables for reference purposes to identify the                European Communities by order of the Verwaltungsgerichtsh-
    supplier’s products?                                                  of (Administrative Court), Vienna, Austria, of 17 March 1999,
                                                                          received at the Court Registry on 6 April 1999, for a
                                                                          preliminary ruling in the case of Dr Herta Schmid as insolvency
2. If Question 1 is to be answered in the affirmative:                    administrator of the assets of the company P.P. Handels
                                                                          GmbH (in liquidation) against Finanzlandesdirektion für Wien,
                                                                          Niederösterreich und Burgenland on the following question:
    (a) Does displaying the appliance manufacturer’s product              Does Article 10 of Council Directive 69/335/EEC of 17 July
        numbers (OEM numbers) alongside the supplier’s own                1969 concerning indirect taxes on the raising of capital (1)
        order numbers amount to a lawful comparison of the                preclude the levying for 1996 of the tax provided for
        goods under Article 3a(l)(c) of the directive, and in             by Paragraph 24(4) of the 1988 Körperschaftsteuergesetz
        particular a comparison of the prices?                            (Corporation Tax law) as amended by Federal law BGBl
                                                                          (Bundesgesetzblatt, Federal Law Gazette) No 680/1994?
    (b) Are the product numbers (OEM numbers) ‘dis-                       (1) OJ 1969 L 249, p. 25.
        tinguishing marks of a competitor’ within the meaning
        of Article3a(l)(g)?
3. If Question 2 is to be answered in the affirmative:                    Reference for a preliminary ruling by the Cour Adminis-
                                                                          trative d’Appel (Administrative Appeal Court), Nancy
                                                                          (First Chamber), by judgment of that court of 25 March
    (a) What are the criteria to be used when assessing                   1999 in the case of Roquette Frères SA against Office
        whether an advertisement within the meaning of                         National Interprofessionnel des Céréales (O.N.I.C.)
        Article 2(2a) takes unfair advantage of the reputation
        of a distinguishing mark of a competitor within the                                        (Case C-114/99)
        meaning of Article 3a(l)(g)?
                                                                                                   (1999/C 188/21)
                                                                          Reference has been made to the Court of Justice of the
    (b) Is the fact that the appliance manufacturer’s product             European Communities by judgment of the Cour Administrat-
        numbers (OEM numbers) appear alongside the sup-                   ive d’Appel, Nancy (First Chamber) of 25 March 1999, received
        plier’s own order numbers sufficient to justify an                at the Court Registry on 6 April 1999, for a preliminary
        allegation that unfair advantage is being taken of the            ruling in the case of Roquette Frères SA v Office National
        reputation of the distinguishing mark of a competitor             Interprofessionnel des Céréales (O.N.I.C.) on the following
        under Article 3a(1)(g), if the third party competitor             question:
        could instead in each case indicate the product for
        which the replacement part or consumable is suitable?             Did the provisions in force on 1 March 1990 and, in particular,
                                                                          Article 5(1) of Commission Regulation No 3665/87 of 27 Nov-
                                                                          ember 1987 (1), in so far as it provides that the export refund
                                                                          is to be paid only if ‘the product has been actually placed on
    (c) When assessing unfairness, is it relevant whether a               the market in the non-member country of import in the
        reference (solely) to the product for which the consum-           unaltered state’, permit the body responsible for supervision
        able or replacement part is suitable — in lieu of a               (in this instance, the O.N.I.C.) to challenge the supplier’s
        reference to the product number (OEM number) — is                 entitlement to refunds on the sole ground that the goods
        likely to make it difficult to sell the supplier’s products,      delivered had been used by its foreign customer in the
        particularly because customers generally take their               preparation of another product, which was itself liable to be
        bearings from the appliance manufacturer’s product                re-exported to other Member States of the European Economic
        numbers (OEM numbers)?                                            Community?
                                                                          (1) Laying down detailed rules for the application of the system of
                                                                              export refunds on agricultural products.