CELEX: C2002/169/28
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-141/02 P: Appeal brought on 15 April 2002 by the Commission of the European Communities against the judgment delivered on 30 January 2002 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-54/99 max.mobil Telekommunikation Service GmbH v Commission of the European Communities, supported by the Kingdom of the Netherlands

13.7.2002               EN                     Official Journal of the European Communities                                       C 169/15
Court Registry on 15 March 2002, for a preliminary ruling                 consideration of the procured goods and services to the
in the case of Finanzamt Gummersbach against Gerhard                      subsequently founded limited company and, from the outset,
Bockemühl on the following questions:                                     did not intend to carry out any other output transactions, and
                                                                          if, in the Member State concerned, a transfer of a totality of
                                                                          assets is not deemed to be a supply of goods or services (first
1.    Is it necessary under Article 18(1)(a) of Directive 77/388/         sentence of Article 5(8) and Article 6(5) of the Sixth Council
      EEC (1) for a person to whom services are supplied, who             Directive 77/388/EEC of 17 May 1977 on the harmonisation
      is liable to pay tax under Article 21(1) of Directive 77/           of the laws of the Member States relating to turnover taxes —
      388/EEC and who has been charged to tax as such, to be              Common system of value added tax) (1)?
      in possession of an invoice issued in accordance with
      Article 22(3) of Directive 77/388/EEC in order to exercise
      his right to deduct input tax?                                      (1) OJ L 145 of 13.6.1977, p. 1.
2.    If the answer to this question is in the affirmative, what
      details must the invoice contain? Is it detrimental if,
      instead of the supply of staff, the work carried out using
      that staff is given as the service supplied?
3.    What would be the consequences in law of inextinguish-              Appeal brought on 15 April 2002 by the Commission of
      able doubts that the person issuing the invoice supplied            the European Communities against the judgment deliver-
      the service invoiced?                                               ed on 30 January 2002 by the Court of First Instance of
                                                                          the European Communities (Second Chamber, Extended
                                                                          Composition) in Case T-54/99 max.mobil Telekommuni-
                                                                          kation Service GmbH v Commission of the European
(1) OJ L 145 of 13.6.1977, p. 1.                                          Communities, supported by the Kingdom of the Nether-
                                                                                                         lands
                                                                                                 (Case C-141/02 P)
                                                                                                  (2002/C 169/28)
                                                                          An appeal against the judgment delivered on 30 January 2002
Reference for a preliminary ruling by the Bundesfinanz-
                                                                          by the Court of First Instance of the European Communities
hof by order of that Court of 23 January 2002 in the case                 (Second Chamber, Extended Composition), in Case T-54/99
of Finanzamt Offenbach am Main-Land against Faxworld                      max.mobil Telekommunikation Service GmbH v Commission
Vorgründungsgesellschaft Peter Hünninghausen und
                                                                          of the European Communities(1), supported by the Kingdom
                       Wolfgang Klein GbR                                 of the Netherlands, was brought before the Court of Justice
                                                                          of the European Communities on 15 April 2002 by the
                          (Case C-137/02)                                 Commission of the European Communities, represented by
                                                                          Walter Mölls and Klaus Wiedner, of the Commission’s Legal
                                                                          Service, with an address for service at the office of Luis Escobar
                          (2002/C 169/27)                                 Guerrero, also of the Legal Service, Wagner Centre, C 254,
                                                                          Luxembourg.
                                                                          The appellant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof                      —     set aside the judgment of the Court of First Instance of
(Federal Finance Court) of 23 January 2002, received at the                     the European Communities of 30 January 2002 in Case
Court Registry on 12 April 2002, for a preliminary ruling in                    T-54/99 (max.mobil v Commission) in so far as it
the case of Finanzamt Offenbach am Main-Land against                            declares admissible the action for annulment brought by
Faxworld Vorgründungsgesellschaft Peter Hünninghausen und                       max.mobil against the Commission’s letter of 11 Decem-
Wolfgang Klein GbR on the following question:                                   ber 1998;
                                                                          —     dismiss as inadmissible the action for annulment brought
Is a partnership which has been established for the sole purpose                by max.mobil against the Commission’s letter of
of forming a company limited by shares (Aktiengesellschaft)                     11 December 1998;
entitled to deduct the value added tax paid on goods and
services procured by it, if, after that company has been                  —     order max.mobil to pay the costs of the proceedings
formed, that partnership effects by formal act a transfer for                   before the Court of Justice.
 ---pagebreak--- C 169/16                EN                   Official Journal of the European Communities                                       13.7.2002
Pleas in law and main arguments                                               in the Internal Market (Trade Marks and Designs) did not
                                                                              infringe Article 7 (1) (c) of Council Regulation (EC)
                                                                              No 40/94 of 20 December 1993 on the Community
The judgment of the Court of First Instance infringed                         trade mark (2) in adopting its decision of 28 February
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well                2000 (Case R 423/1999-2) with the exception as regards
as the ‘right to sound administration’ and the Commission’s                   goods in the categories ‘manuals and publications’;
‘general duty of supervision’, in so far as it inferred that
individuals have a right to have their complaint under                  2.    for the rest, annul the decision of the Second Board of
Article 90 of the EC Treaty (now Article 86 EC) dealt with and                Appeal of the Office for Harmonization in the Internal
a corresponding right of action. Moreover, it erroneously                     Market (Trade Marks and Designs) of 28 February 2000
inferred that complaints by individuals in the context of                     (Case R 423/1999-2);
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of           3.    order the Office for Harmonization in the Internal Market
First Instance has at any rate infringed Article 90(3). If so, and            (Trade Marks and Designs) to pay the costs both at first
in so far as it based its conclusions thereon it has also infringed           instance and on appeal.
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.                                                       Pleas in law and main arguments
(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v
                                                                        The Appellant maintains that the Court of First Instance
    Commission [2002] ECR II-0000.                                      misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
                                                                        held that the aforementioned article prevents the signs or
                                                                        indications referred to in that provision from being reserved
                                                                        to one undertaking alone because they have been registered as
                                                                        a mark and that the provision thus pursues an aim which is in
                                                                        the public interest, namely that such signs or indications may
                                                                        be freely used by all.
Appeal brought on 25 April 2002 by Streamserve Inc.                     In the Appellant’s view the criteria applied by the Court of
against the judgment delivered on 27 February 2002 by                   First Instance in the application of Article 7 (1) (c) to the facts
the Fourth Chamber of the Court of First Instance of                    of the case are too severe.
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
    Internal Market (Trade Marks and Designs) (OHIM)                    (1) OJ C 176, 24.6.2000, p. 29.
                                                                        (2) OJ L 11, 14.1.1994, p. 1.
                         (Case C-150/02 P)
                          (2002/C 169/29)
An appeal against the judgment delivered on 27 February                 Action brought on 26 April 2002 by the Commission
2002 by the Fourth Chamber of the Court of First Instance               of the European Communities against the Republic of
of the European Communities in case T-106/00 between                                                  Austria
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM), was
                                                                                                (Case C-155/02)
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented                                 (2002/C 169/30)
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.
                                                                        An action against the Republic of Austria was brought before
The Appellant claims that the Court should:                             the Court of Justice of the European Communities on 26 April
                                                                        2002 by the Commission of the European Communities,
1.    annul the judgment of the Court of First Instance of              represented by Josef Christian Schieferer, of its Legal Service,
      27 February 2002 in case T-106/00, Streamserve Inc. v.            with an address for service in Luxembourg at the office of Luis
      OHIM (‘STREAMSERVE’), in so far as it found that the              Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
      Second Board of Appeal of the Office for Harmonization            Kirchberg, Luxembourg.