Case C-200/01 P: Appeal brought on 14 May 2001 by the Commission of the European Communities against the judgment delivered on 6 March 2001 by the Court of First Instance of the European Communities (Third Chamber) in Case T-331/94 IPK-München GmbH v Commission of the European Communities
Date: 2001-10-13
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), economic support, invitation to tender, tourism

C 289/8

EN

Official Journal of the European Communities

13.10.2001

Involvement of a holding company in the management of
its
subsidiaries must be regarded as an economic activity within the
meaning of Article 4(2) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment, only in so far as it entails carrying
out transactions which are subject to VAT by virtue of Article 2 of
that directive.

(1) OJ 163 of 10.6.2000.

Appeal brought on 14 May 2001 by the Commission of
the European Communities against the judgment deliver-
ed on 6 March 2001 by the Court of First Instance of
the European Communities (Third Chamber) in Case
T-331/94 IPK-München GmbH v Commission of the
European Communities

(Case C-200/01 P)

(2001/C 289/15)

Reference for a preliminary ruling by the Tribunal Tribu-
ta´rio de Primeira Instancia do Porto, 2.o Juı´zo —
1.a Secça˜o, by decision of that court of 7 November 2000
in the case of Caves Costa Verde, L.da against Fazenda
Pu´ blica

(Case C-154/01)

(2001/C 289/14)

Reference has been made to the Court of Justice of the
European Communities by decision of the Tribunal Tributario
de 1.a Instância do Porto 2.o Juı´zo — 1.a Secça˜o (Tax Court of
First Instance, Oporto, Second Division, First Chamber) of
7 November 2000, which was received at the Court Registry
on 9 April 2001, for a preliminary ruling in the case of Caves
Costa Verde, L.da against Fazenda Pu´ blica on the following
question:

Are the charges assessed under Decree-laws No 26317, of
30 January 1936, No 40037, of 18 January 1955 and No 321-
A/86, of 25 September 1986 compatible with the Sixth
Directive (1), having regard to the fact that according to the
appellant, the charges should be assessed on the basis of
turnover whereas the Instituto da Vinha e do Vinho argues
that they constitute a marketing charge on the sales of wine in
bulk?

In the absence of sufficient information in the order for
reference, the Court of Justice (Fifth Chamber), by order of
11 July 2001, declared the reference for a preliminary ruling
manifestly inadmissible.

(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 L 145, 13.6.1977, p. 1).

An appeal has been brought before the Court of Justice of the
European Communities on 14 May 2001 by the Commission
of the European Communities, represented by Jürgen Grun-
wald, Legal Adviser, of its Legal Service, acting as Agent, with
an address for service in Luxembourg at the office of Gérard
Berscheid, Legal Adviser to the Commission of the European
Communities, Wagner Centre, Kirchberg, against the judgment
delivered on 6 March 2001 by the Court of First Instance of
in Case
the European Communities
T-331/94 IPK-München GmbH v Commission of the European
Communities (1).

(Third Chamber)

The appellant claims that the Court should:

1.

annul the judgment of the Court of First Instance of
6 March 2001 in Case T-331/94 and dismiss the action;

2.

in the alternative:

annul the judgment of the Court of First Instance cited in
paragraph (1) and refer the case back to the Court of First
Instance;

3.

order the respondent to pay the costs of the proceedings.

Pleas in law and main arguments

— Incomplete legal assessment of the basis of the contested
decision. Infringement of the prohibition of unjust enrich-
ment.

— Incorrect

legal assessment of

the collusion between
Mr Tzoanos, the Greek undertaking 01-Pliroforiki and
the respondent.

— Incorrect legal assessment of the Commission’s proposal
to include the Studienkreis undertaking in the project.

— Failure to examine the legal consequences of a breach of
bona fides. As a legal consequence of its assessment the
Court of First Instance ought not to have set aside the
contested decision in its entirety but only in so far as the
Commission had thereby refused to participate financially
in the expenditure which the respondent had lawfully
incurred with regard to the sixth and seventh phases of
the project but which it had been unable to complete for
lack of time.

13.10.2001

EN

Official Journal of the European Communities

C 289/9

— Failure to examine the principles of ‘dolo agit, qui petit,
quod statim redditurus est’ and ‘fraus omnia corrumpit’.
In the absence of a legally operative judgment imposing
a penalty the Commission is able to rely only on existing
suspicions and results of investigations, as soon as, and
in so far as, these are available. This the Commission did
in the present proceedings. By excluding, as a legal
objection, application of the legal principle ‘fraus omnia
corrumpit’ in conjunction with the legal principle ‘dolo
agit, qui petit, quod statim redditurus est’, in a case such
as the present (but without having examined that issue in
any detail), and instead calling for the adoption of a new
decision with a fresh statement of reasons, the Court of
First Instance is in effect obliging the Commission to pay
so long as its suspicions have not developed into
incontrovertible certainty. As a general rule, however,
any subsequent claim for repayment would fail on the
ground that the debtor has disappeared, no longer has
assets or has become insolvent.

2. What criteria must be satisfied for a broadcast of several
feature films and films made for television to be classified
as a ‘serial’, derogating from the advertising restrictions
for feature films and films made for television?

3. Are broadcasts consisting of several parts which manifest
a common concept due to common features of theme,
content and form, and which are broadcast at connected
times, to be regarded as a ‘serial’ for the purposes of
Article 11(3) of Directive 89/552/EEC as amended by
Directive 97/36/EEC?

4. Does the interpretation of

the term ‘serial’

for the
purposes of Article 11(3) of Directive 89/552/EEC as
amended by Directive 97/36/EEC permit common points
of theme or content of the episodes to be wholly or
largely regarded as unnecessary and predominantly points
of form or form of reception taken as the criterion?

(1) Not yet published in the European Court Reports.

(1) OJ 1989 L 298, p. 23.
(2) OJ 1997 L 202, p. 60.

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that court of
15 June 2001 in the case of RTL Television GmbH against
Niedersächsische Landesmedienanstalt für privaten Rund-
funk

Reference for a preliminary ruling from the Landesgericht
Feldkirch by order of that court of 22 June 2001 in
the commercial register cases of (1) Hermann Pfanner
Getränke Gesellschaft mbH and Others and (2) Getränke-
betrieb Gesellschaft m.b.H. and Others v Republic of
Austria

(Case C-245/01)

(2001/C 289/16)

(Case C-248/01)

(2001/C 289/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony Higher Administrative
Court) of 15 June 2001, which was received at the Court
Registry on 25 June 2001, for a preliminary ruling in the case
of RTL Television GmbH against Niedersachsische Landesme-
dienanstalt für privaten Rundfunk on the following questions:

1. Does Article 11(3) of Council Directive 89/552/EEC(1) of
3 October 1989 on the coordination of certain provisions
laid down by law, regulation or administrative action in
Member States concerning the pursuit of
television
broadcasting activities as amended by Directive 97/36/EC
of the European Parliament and of the Council (2) of
30 June 1997, by restricting advertising breaks, pursue
the objective of protecting the artistic value of feature
films and films made for television,
irrespective of
whether films made for television have from the outset
been produced for television and provided with breaks
designed for the insertion of advertising spots?

Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht
Feldkirch (Regional Court, Feldkirch), Austria, of 22 June
2001, which was received at the Court Registry on 27 June
2001, for a preliminary ruling in the commercial register cases
of
(1) Hermann Pfanner Getränke Gesellschaft mbH and
Others and (2) Getränkebetrieb Gesellschaft m.b.H. and Others
v Republic of Austria on the following questions on the
validity of the First Council Directive 68/151/EEC (1) and the
Fourth Council Directive 78/660/EEC (2):

1.

Is the obligation of general disclosure of the annual
accounts of every capital company regardless of
its
economic circumstances compatible with the fundamental
and human rights guaranteed in Community law, funda-
mental freedoms and general principles of law of the
Member States, in particular the rights to data protection,
freedom of expression, informational self-determination,
private life, protection of business and commercial sec-
rets, property and freedom to carry on a trade, private
autonomy and compliance with the requirement of
reasonableness (proportionality)?