Case C-384/01: Action brought on 5 October 2001 against the French Republic by the Commission of the European Communities
Date: 2001-12-08
Institutions: Court of Justice
Subjects: European Commission, France, VAT, action for failure to fulfil an obligation, electricity supply, gas

C 348/14

EN

Official Journal of the European Communities

8.12.2001

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof by order of that court of 13 September 2001
in the case of Dr Gustav Schneider v Bundesminister für
Justiz

Republic has failed to fulfil its obligations under the Sixth
Council VAT Directive 77/388/EEC (2);

— Order the Italian Republic to pay the costs.

(Case C-380/01)

(2001/C 348/24)

Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsge-
richtshof (Administrative Court, Austria) of 13 September
2001, which was received at the Court Registry on 4 October
2001, for a preliminary ruling in the case of Dr Gustav
Schneider v Bundesminister für Justiz on the following ques-
tion:

Is Article 6 of Council Directive 76/207/EEC on the implemen-
tation of the principle of equal treatment for men and women
as regards access to employment, vocational training and
promotion, and working conditions (1) to be interpreted as
meaning that the possibility required by that article of pursuing
claims (in the present case, a claim for compensation) by
judicial process is not adequately satisfied by the Austrian
Verwaltungsgerichtshof (Administrative Court) alone, in view
of that court’s legally limited powers (a court which hears
appeals on points of law only with no fact-finding powers)?

(1) OJ 1976 L 39, p. 40.

Pleas in law and main arguments

Under Article 11(A)(1)(a) of the Directive, Member States are
required to include in the taxable amount not only that which
constitutes the consideration paid by the purchaser or to the
provider of the service, but also the subsidies provided by third
parties to the supplier of the goods or the provider of the
service, provided that such subsidies are ‘directly linked to the
price of such supplies’.

The Commission argues that
the assistance paid to the
processing undertakings which produce dried fodder consti-
the good produced by such
tutes part of
undertakings, thus falling within the category ‘subsidies directly
linked to the price of such supplies’ and which must therefore
be subject to tax.

the price of

(1) OJ 1995 L 15, p. 11.
(2) OJ 1977 L 145, p. 1.

Action brought on 5 October 2001 against the French
Republic by the Commission of the European Communi-
ties

Action brought on 4 October 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-384/01)

(2001/C 348/26)

(Case C-381/01)

(2001/C 348/25)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 October
2001 by the Commission of the European Communities,
represented by Enrico Traversa, acting as Agent.

The applicant claims that the Court should:

— Declare that, by failing to levy value added tax (VAT) on
the assistance paid pursuant to Council Regulation (EC)
No 603/95 of 21 February 1995 on the common
organisation of the market in dried fodder (1), the Italian

An action against the French Republic was brought before the
Court of Justice of the European Communities on 5 October
2001 by the Commission of the European Communities,
represented by E. Traversa and C. Giolito, acting as Agents,
with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— Declare that, by applying a reduced rate of VAT to the
fixed part of the prices for gas and electricity supplied by
the public networks, the French Republic has failed to
fulfil its obligations under Article 12(3)(a) and (b) of Sixth
Council Directive 77/388/EC 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 (1),

8.12.2001

EN

Official Journal of the European Communities

C 348/15

— order the French Republic to pay the costs.

Reference for a preliminary ruling by the Rechtbank van
Eerste Aanleg te Veurne by judgment of 4 May 2001 in
criminal proceedings brought against Klaus Hans Fritz
Brügge; civil party: Benedikt Leliaert

Pleas in law and main arguments

In this action the Commission is seeking a declaration of a
failure in two respects to comply with the provisions of the
Sixth Directive: first, a failure to comply with the first and
third sentences of Article 12(3) (a) thereof, inasmuch as France
is applying a reduced rate contrary to that provision and,
secondly, a failure to comply with Article 12(3) (b) concerning
the procedure for authorisation of application of a reduced
rate on supplies of natural gas and electricity.

— On the consultation procedure (Article 12(3)(b)): as long
as France had not replied to the request for additional
information,
the Commission was unable to take a
definitive view. In the absence of full information, despite
a request to that effect, the Commission was entitled to
take the view that the French authorities had withdrawn
their request. Consequently, by not forwarding the infor-
mation requested by the Commission in order to enable
it to take a decision under Article 12(32)(b), France has
failed to fulfil its obligations under that provision.

— On the substance of the measure (Article 12(3)(a)): if
the supply agreement is regarded as a specific service
representing fixed costs as distinct from the actual supply
of energy, the reduced rate would then have no legal basis
in Article 12(3)(a) which refers to Annex H and in which
the agreement or the supply of energy does not feature.
Moreover, there is no warrant for that reduced rate in
Article 12(3)(b) which merely mentions ‘supplies of
natural gas and electricity’. If, on the other hand, the
agreement to supply is viewed as forming part of the
actual supply of energy, then France is obliged to apply
the same rate to a transaction relating to the same asset
in accordance with the principle of a single rate under
Article 12(3)(a). Thus, under Article 12(3)(1b) it is then
the whole of the transaction (agreement and supply)
to the same reduced rate.
which should be subject
Consequently, notwithstanding all the distinctions which
France has sought to draw between the agreement to
supply and the actual supply of energy, and however
such agreement maybe described, France cannot but be
found to have failed to fulfil
its obligations under
Article 12(3)(a) and (b) of the Sixth VAT Directive.

(1) OJ 1977 L 145, p. 1.

(Case C-385/01)

(2001/C 348/27)

Reference has been made to the Court of Justice of the
European Communities by judgment of 4 May 2001 by the
Rechtbank van Eerste Aanleg te Veurne (Court of First Instance,
Veurne), which was received at the Court Registry on 8 October
2001, for a preliminary ruling in criminal proceedings brought
against Klaus Hans Fritz Brügge; civil party: Benedikt Leliaert,
on the following question:

Does application of Article 54 of the Schengen Agreement of
19 June 1990 allow the Belgian Openbaar Ministerie (Public
Prosecutor’s Department) to require a German national to
appear before the Belgian criminal courts and allow those
courts to sentence that national in the case where the German
Public Prosecutor’s Department, on the basis of the same facts,
has offered that German national the opportunity to make
payment in an out-of-court settlement, which that national
has accepted?

Action brought on 8 October 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-388/01)

(2001/C 348/28)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 8 October
2001 by the Commission of the European Communities,
represented by Marian Patakia and Roberto Amorosi, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by maintaining in force discriminatory
charges for admission to public museums, monuments,
galleries, archaeological digs, parks and gardens in Italy,
granted by local or decentralised authorises which only
favour Italian nationals or residents within the territory
of the administrative authority running the cultural sites
in question and who are aged over 60 or 65 years, to the
exclusion of tourists who are nationals of other Member