Case C-77/01: Reference for a preliminary ruling by the Tribunal Central Administrativo, 2a Secção by judgment of that court of 19 December 2000 in the case of EDM — Empresa de Desenvolvimento Mineiro, SA, against Fazenda Pública
Date: 2001-04-21
Institutions: Court of Justice
Subjects: consortium, economic activity, holding company, interpretation of the law, loan

C 118/14

EN

Official Journal of the European Communities

21.4.2001

(a)

(b)

(c)

to refer to physiological or pharmacological effects,
in particular those which preserve youthfulness,
inhibit signs of ageing, promote slimming or main-
tain health, or to create the impression of any such
effect;

to refer to case-histories, recommendations made by
doctors or medical experts’ reports;

to use health-related, pictorial or stylised represen-
tations of organs of the human body, pictures
of members of the health-care professions or of
sanatoria or other pictures or illustrations referring
to health-care activities?

2. Do Directive 79/112/EEC or Articles 28 and 30 EC
preclude a national provision which, on the marketing of
foodstuffs, permits health-related information such as
that described in Question 1 to be affixed thereto
only after prior authorisation by the competent federal
minister, whereby a condition of authorisation is that the
health-related information be consistent with protecting
the consumer from being misled?

Pleas in law and main arguments

The Commission takes the view that the Grand Duchy of
Luxembourg has not adopted the necessary measures to
implement the provisions set out in its application and that
the existing provisions relied on do not constitute full and
correct transposition.

(1) OJ 1992 L 206, p. 2.

Reference for a preliminary ruling by the Tribunal Central
Administrativo, 2a Secça˜o by judgment of that court of
19 December 2000 in the case of EDM — Empresa de
Desenvolvimento Mineiro, SA, against Fazenda Pu´ blica

(Case C-77/01)

(2001/C 118/23)

Action brought on 14 February 2001 by Commission of
the European Communities against Grand Duchy of
Luxembourg

(Case C-75/01)

(2001/C 118/22)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 14 February 2001 by the Commission of the European
Communities, represented by R.B. Wainwright and J. Adda,
acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should

— Declare that, by failing to bring into force all the measures
necessary to implement fully and correctly Articles 1,
4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b)
and 13(2), 14, 15, 16(1), 22(b) and (c), and 23(2) in
conjunction with annexes I, II, IV, V and VI, of Council
Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (1), the
Grand-Duchy of Luxembourg has failed to fulfil
its
obligations under that directive and the third paragraph
of Article 249 of the EC Treaty; and

— Order the Grand Duchy of Luxembourg to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal Central
Administrativo, 2a Secça˜o (Second Chamber of the Central
Administrative Court) of 19 December 2000, which was
received at the Court Registry on 15 February 2001, for a
preliminary ruling in the case of EDM — Empresa de
Desenvolvimento Mineiro, SA, against Fazenda Pu´ blica on the
following questions:

Question 1

Does the granting of annually repaid loans by a holding
company to its partners constitute ‘economic activity’, within
the meaning of Article 4(2) of the Sixth Directive (1), where
that company’s principle activity is to manage those partners
and, to a certain extent, also guarantee the loans contracted by
them?

Question 2

Likewise: the performance of operations, in the context of a
consortium as in the present case, by a company which is both
a member and the administrator of the consortium, particularly
where they exceed its share as stipulated in the contract, in
return for payment in consideration of its value by the other
members of the consortium?

21.4.2001

EN

Official Journal of the European Communities

C 118/15

Question 3

Is the financial activity of a company whose annual revenue is
far higher than that produced by the activity which is its
principal object, according to its statutes, to be regarded as
‘incidental’ for the purposes of Article 19(2) of the Sixth
Directive?

(1) Sixth Council Directive 77/388/EEC 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
basis of assessment (OJ 1977 L 145, p. 1).

Reference for a preliminary ruling from the Bundesge-
richtshof by order of that court of 11 January 2001 in the
case of Bundesverband Güterkraftverkehr und Logistik
(BGL) e.V.,
intervener: Préservatrice Foncière Tiard,
Société anonyme d’assurances de droit français, v Federal
Republic of Germany, represented by Hauptzollamt Frie-
drichshafen

(Case C-78/01)

(2001/C 118/24)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof
(Federal Court of Justice) of 11 January 2001, which was
received at the Court Registry on 15 February 2001, for a
preliminary ruling in the case of Bundesverband Güterkraftver-
kehr und Logistik (BGL) e.V., intervener: Préservatrice Foncière
Tiard, Société anonyme d’assurances de droit
français, v
Federal Republic of Germany, represented by Hauptzollamt
Friedrichshafen on the following questions:

1.(a) Does the time-limit laid down in the first subparagraph
of Article 454(3) of Commission Regulation (EEC)
No 2454/93 of 2 July 1993 (1), implementing Council
Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (2), for fur-
nishing proof of the actual place of an irregularity apply
also where a Member State, pursuant to Article 454(2)
and the first and second subparagraphs of Article 454(3)
of Regulation No 2454/93, brings proceedings against
the guaranteeing association for the payment of duties,
and the association wishes to prove in those proceedings
that the place where the irregularity was actually commit-
ted is situated in another Member State?

(aa)

In such a case does the one-year time-limit in the first
subparagraph of Article 454(3) and Article 455(1) of
Regulation No 2454/93 in conjunction with the
first sentence of Article 11(1) of the TIR Convention
or the two-year time-limit in Article 455(2) of that
regulation in conjunction with the first sentence of
Article 11(2) of the TIR Convention apply?

(bb) Does the time-limit for furnishing proof in the case
set out in Question 1(a) apply in such a way that the
guaranteeing association must submit its allegation
under tender of evidence that the irregularity was
actually committed in another Member State within
the time-limit and, if that is not done, is precluded
from offering that proof?

2.(a) Under Articles 454 and 455 of Regulation No 2454/93,
is the Member State which finds that an irregularity has
been committed in connection with a transport operation
under cover of a TIR carnet obliged as against the
guaranteeing association, in addition to the notifications
under Article 455(1) of that regulation and an enquiry to
the customs office of destination, to investigate where the
irregularity was actually committed and who is the
customs debtor within the meaning of Article 203(3) of
Regulation No 2913/92, by requesting another Member
State for administrative assistance in ascertaining the facts
(see Council Regulation (EEC) No 1468/81 of 19 May
1981 (3))?

(b)

If the answer to Question 2(a) is in the affirmative,

(aa)

If such an investigative obligation is infringed, is the
irregularity not deemed under the first subparagraph
of Article 454(3) of Regulation No 2454/93 to have
been committed in the Member State in which it
was detected?

(bb) Must the Member State which has detected the
irregularity, when claiming against the guaranteeing
association, demonstrate and prove that such an
investigative obligation has been complied with?

(1) OJ L 253, 11.10.1993, p. 1.
(2) OJ L 302, 19.10.1992, p. 1.
(3) OJ L 144, 2.6.1981, p. 1.

Appeal brought on 17 February 2001 by Aéroports de
Paris against the judgment delivered on 12 December
2000 by the Third Chamber of the Court of First Instance
of the European Communities in Case T-128/98 between
Aéroports de Paris and the Commission of the European
Communities, supported by Alpha Flight Services

(Case C-82/01 P)

(2001/C 118/25)

(b)

If the answer to Question 1(a) is in the affirmative:

An appeal against the judgment delivered on 12 December
2000 by the Third Chamber of the Court of First Instance