CELEX: C2003/251/12
Language: en
Date: 2003-10-18 00:00:00
Title: Case C-354/03: 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

C 251/6                EN                     Official Journal of the European Union                                           18.10.2003
deprived of the benefit of the inter-service meeting provided          2003, for a preliminary ruling in the case of Optigen Ltd
for in the regulations had not adversely affected him. In the          against Commissioners of Customs and Excise on the
absence of that meeting, the applicant was unable either to            following questions:
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.
                                                                       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:
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                       (1)    only the particular transaction to which the trader
                Nestlé SA against Mars UK Ltd                                       was a party including the trader's purposes in enter-
                                                                                    ing into it, or
                          (Case C-353/03)
                          (2003/C 251/11)
                                                                             (2)    the totality of transactions, including subsequent
Reference has been made to the Court of Justice of the                              transactions, making up a circular chain of supply
European Communities by an order of the Court of Appeal                             of which the particular transaction forms part
(England & Wales) (Civil Division) dated 25 July 2003, which                        including the purposes of other participants in the
was received at the Court Registry on 18 August 2003, for a                         chain of which the trader has no knowledge and/or
preliminary ruling in the case of Société de produits Nestlé SA                     means of knowledge, and/or
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                      (3)    the fraudulent acts and intention, whether arising
Article 7(3) of Council Regulation 40/94 (2) may be acquired                        prior or subsequent to the particular transaction, of
following or in consequence of the use of that mark as part of                      other participants in the circular chain of whose
or in conjunction with another mark?                                                involvement the trader is unaware and of whose
                                                                                    acts and intentions the trader has no knowledge
                                                                                    and/or means of knowledge, or
(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
                                                                             (4)    some other, and if so what, criteria?
    Community trade mark OJ L 011, 14.01.1994, p. 1-36.
                                                                       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
Reference for a preliminary ruling by the High Court of
                                                                             of proportionality, equal treatment or legal certainty?
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
                                                                       (1) First Council Directive 67/227/EEC of 11 April 1967 on the
                          (Case C-354/03)                                  harmonisation of legislation of Member States concerning turnover
                                                                           taxes OJ P 071, 14.04.1967, p. 1301-1303.
                          (2003/C 251/12)                              (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of laws of the Member States relating to turnover
Reference has been made to the Court of Justice of the                     taxes — Common system of value added tax: uniform bassis of
European Communities by an order of the High Court of                      assessment OJ L 145, 13.06.1977, p. 1-40.
Justice (England & Wales), Chancery Division, dated 28 July
2003, which was received at the Court Registry on 18 August