CELEX: C2003/171/29
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-243/03: Action brought on 6 June 2003 by the Commission of the European Communities against the French Republic

19.7.2003               EN                       Official Journal of the European Union                                          C 171/19
(3) How should the requirement that the use must be                      Action brought on 5 June 2003 by the Commission of
       ‘necessary’ to indicate the intended purpose of a product         the European Communities against the Kingdom of the
       be interpreted? Can the criterion of necessity be satisfied                                     Netherlands
       even though it would in itself be possible to state the
       intended purpose without an express reference to the
                                                                                                     (Case C-241/03)
       third party’s trade mark, by merely mentioning only for
       instance the technical principle of functioning of the
       product? What significance does it have in that case that                                     (2003/C 171/28)
       the statement may be more difficult for consumers to
       understand if there is no express reference to the third
       party’s trade mark?
                                                                         An action against the Kingdom of the Netherlands was brought
(4) What factors should be taken into account when assessing             before the Court of Justice of the European Communities on
       accordance with honest commercial practice? Does the              5 June 2003 by the Commission of the European Communi-
       mentioning of a third party’s trade mark in connection            ties, represented by G. Zavvos and W. Wils, as Agents.
       with the marketing of one’s own product constitute a
       reference to the fact that the marketer’s own product
       corresponds, in quality and technically or as regards its         The applicant claims that the Court should:
       other properties, to the product designated by the third
       party’s trade mark?                                               —      declare that, by failing to adopt the laws, regulations
                                                                                and administrative provisions necessary to comply with
(5) Does it affect the permissibility of the use of a third                     Directive 2000/26/EC of the European Parliament and of
       party’s trade mark that the economic operator who refers                 the Council of 16 May 2000 on the approximation of the
       to the third party’s trade mark also markets, in addition                laws of the Members States relating to insurance against
       to a spare part or accessory, a product of his own which                 civil liability in respect of the use of motor vehicles and
       that spare part or accessory is intended to be used with?                amending Council Directives 73/239/EEC and 88/357/
                                                                                EEC (Fourth motor insurance Directive) ( 1), or in any
( 1) First Council Directive 89/104/EEC of 21 December 1988 to                  event by failing to inform the Commission thereof, the
     approximate the laws of the Member States relating to trade                Kingdom of the Netherlands has failed to fulfil its
     marks (OJ L 40 of 11.2.1989, p. 1).                                        obligations under that directive;
                                                                         —      order the Kingdom of the Netherlands to pay the costs.
Reference for a preliminary ruling by the Juzgado de                     Pleas in law and main arguments
1a Instancia n o 35 (Barcelona) by order of that Court of
5 May 2003 in the case of QDQ Media S.A. against
                         A. Omedas Lecha                                 The time limit for compliance with the directive expired on
                                                                         20 July 2002.
                          (Case C-235/03)
                                                                         (1 ) OJ 2000 L 181, p. 65.
                          (2003/C 171/27)
Reference has been made to the Court of Justice of the
European Communities by order of the Juzgado de 1a Instancia
no 35 (Court of First Instance No 35) (Barcelona) of 5 May
2003, received at the Court Registry on 2 June 2003, for a
preliminary ruling in the case of QDQ Media S.A. against                 Action brought on 6 June 2003 by the Commission of the
A. Omedas Lecha on the following question:                                    European Communities against the French Republic
Within the context of the protection accorded a creditor under                                       (Case C-243/03)
Directive 2000/35/EC ( 1) of the European Parliament and of
the Council of 29 June 2000 on combating late payment in                                             (2003/C 171/29)
commercial transaction, is it possible to regard as a debt-
related recovery cost the expenses arising from the use of legal
representation and assistance in the enforcement proceedings
brought for the purpose of recovering that debt.                         An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 6 June 2003
( 1) OJ L 200 of 8.8.2000, p. 35.                                        by the Commission of the European Communities, represented
                                                                         by E. Traversa, acting as Agent, with an address for service in
                                                                         Luxembourg.
 ---pagebreak--- C 171/20               EN                        Official Journal of the European Union                                            19.7.2003
The Commission of the European Communities claims that                   Action brought on 10 June 2003 by the French Republic
the Court should:                                                        against the European Parliament and the Council of the
                                                                                                 European Union
1.    declare that by introducing a special rule limiting the
      deductibility of VAT on the purchase of capital goods on
                                                                                                  (Case C-244/03)
      the ground that they were financed by subsidies, the
      French Republic has failed to fulfil its obligations under
      Community law, and in particular Articles 17 and 19 of                                      (2003/C 171/30)
      the Sixth Council Directive of May 1977, as amended, on
      the harmonisation of the laws of the Member States
      relating to turnover taxes — Common system of value
      added tax: uniform basis of assessment ( 1);
                                                                         An action against the European Parliament and the Council of
                                                                         the European Union was brought before the Court of Justice
2.    order the French Republic to pay the costs.
                                                                         of the European Communities on 10 June 2003 by the French
                                                                         Republic, represented by F. Alabrune, G. de Bergues and
                                                                         Ch. Lemaire, of acting as Agents, with an address for service in
                                                                         Luxembourg.
Pleas in law and main arguments
                                                                         The applicant claims that the Court should:
Articles 17 to 20 of the Sixth Directive establish the scheme
for the right of taxable persons to deduct VAT. Taxable persons
who carry out transactions giving rise to the right to deduct            —     Article 1(2) of Directive 2003/15/EC of the European
and at the same time transactions not giving rise to that right                Parliament and of the Council of 27 February 2003 ( 1) in
                                                                               so far as it introduces a new Article 4a into Council
may deduct from the amount of the tax payable by them on
taxed transactions the amount of the tax which they have paid                  Directive 76/768/EEC ( 2) on the approximation of the
on purchases of goods or supplies of services used, within the                 laws of the Member States relating to cosmetic products;
limit of a proportion calculated according to the procedures
defined in Article 19.                                                   —     order the European Parliament and the Council to pay
                                                                               the costs.
The French legislation provides for a limit on the deduction of
VAT payable on assets financed by subsidies in certain
conditions not provided for in the Sixth Directive. The system           Pleas in law and main arguments
established by the French legislation for mixed taxable persons
precludes entitlement to deduct the VAT paid on the purchase
of capital goods to the extent of the proportion of that
                                                                         Article 4a of Directive 76/768/EEC, introduced by Article 1(2)
purchase financed by a subsidy, if the proportion thus financed
                                                                         of Directive 2003/15/EC, prohibits the marketing of cosmetic
is not reflected in the price of the taxable transactions. This
                                                                         products where the final formulation, or which contain
exclusion, which concerns purchases of goods assigned to
                                                                         ingredients or combinations of ingredients which have been
activities coming within the scope of the directive, takes affect
                                                                         the subject of animal testing and prohibits the performance on
before any application of the proportion of deduction and
                                                                         their territory of animal testing of finished cosmetic products
reduces the amount of VAT to which that proportion is
                                                                         and of ingredients or combinations of ingredients. That
applied, where appropriate, for the purpose of calculating the
                                                                         prohibition is more severe than the prohibition which preceded
deductible VAT. However, derogations from the right to
                                                                         it and is incompatible with the rules of the World Trade
deduct are permitted only in the cases expressly provided for
                                                                         Organisation.
by the Sixth Directive. The French Government cannot rely on
Article 2 of First Council Directive 67/227/EEC of 11 April
1967 on the harmonisation of legislation of Member States
concerning turnover taxes, which provides that VAT is charge-            The French Government is seeking the annulment of
able after deduction of the amount of VAT borne directly by              Article 1(2) of the directive in so far as it infringes the principle
the various costs components, to justify such limitation of the          of legal certainty. The Community legislature has disregarded
right to deduct.                                                         the requirement of legal certainty, since it has failed to define
                                                                         clearly and precisely the scope of Article 4a and has used in
                                                                         several places the imprecise expression ‘in order to meet the
It also appears that the French authorities apply the same               requirements of this Directive’. Article 4a gives rise to sensitive
limitation of deduction to taxable persons who carry out only            questions of interpretation and, consequently, the Member
transactions giving rise to the right to deduct.                         States are likely to transpose the amending directive into their
                                                                         domestic legal systems in divergent ways. Secondly, the
                                                                         requirement of legal certainty is even more important where it
( 1) OJ 1977 L 145, p. 1.
                                                                         is sought to impose obligations on individuals. In the present
                                                                         case, the lack of precision and the unclear nature of Article 4a
                                                                         do not enable undertakings to determine what circumstances
                                                                         and legal relationships fall within the scope of that article.