Case C-492/01 P: Appeal brought on 19 December 2001 by Dieckmann & Hansen GmbH against the judgment delivered on 23 October 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-155/99 between Dieckmann & Hansen GmbH and the Commission of the European Communities
Date: 2002-02-16
Institutions: Court of Justice
Subjects: European Commission, Kazakhstan, action for annulment (EU), fish product, import, veterinary inspection

C 44/8

EN

Official Journal of the European Communities

16.2.2002

1. Do Articles 20(2) and 17 of the Sixth Directive (1) or the
principles, in European law, of the protection of legitimate
expectations and legal certainty preclude adjustment —
in a case involving no fraud or abuse or change of
planned use as referred to in paragraphs 50 and 51 of the
judgment of the Court of Justice in the Schloßstrasse
case (2) — of the VAT deducted by a taxable person,
which he has paid on an item of (immovable) property
supplied to him with a view to the letting (subject to
VAT) of that property, for the years of the period of
adjustment under Article 20(2) which have not yet
elapsed at the time of the cessation of that right of option
(in this case, in fact, 1 January 1996) for the sole reason
that, as a result of a legislative amendment, the taxable
person is no longer entitled to waive exemption for that
letting?

2.

If the answer to the first question is in the affirmative, is
the legislative amendment inapplicable only in respect of
the deducted tax mentioned in Question 1, or is it also
inapplicable — until the period of adjustment has expired
— in respect of the taxed status (subject to the provisions
of Article 13(C) of the Sixth Directive) of the letting
referred to in Question 1?

(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).

(2) Judgment of 8.6.2000 in Case C-396/98.

Appeal brought on 19 December 2001 by Dieckmann &
Hansen GmbH against the judgment delivered on 23
October 2001 by the Fifth Chamber of the Court of First
Instance of the European Communities in Case T-155/99
between Dieckmann & Hansen GmbH and the Com-
mission of the European Communities

(Case C-492/01 P)

(2002/C 44/15)

An appeal against the judgment delivered on 23 October 2001
by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-155/99 between Dieckmann
& Hansen GmbH and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 19 December 2001 by Dieckmann
& Hansen GmbH, represented by H.-J. Rabe, Rechtsanwalt, of
Messrs Latham & Watkins Schön Nolte, of Warburgstrasse 50,
D-20354 Hamburg.

The appellant claims that the Court should:

(1)

set aside the judgment of the Court of First Instance of
the European Communities of 23 October 2001;

(2) order

the

respondent

appellant
DEM 8 725 320,45 together with interest at 8 % per
annum from the date on which the action was brought;

to pay

to the

(3) declare that the respondent is liable to compensate the
appellant for all further damage suffered by it as a result
of its having had to dismiss its employees and close down
its business with effect from 31 December 1999 on
account of the ban on the importation of Kazakh caviar;

(4) order the Commission to pay the costs.

Pleas in law and main arguments

— The Court of First Instance wrongly assumed that, for the
purposes of adopting Decision 1999/244/EC (1), which
deleted Kazakhstan from the list of third countries, the
Commission enjoyed a wide discretion, with the result
that only a sufficiently serious breach of the principle of
sound administration protecting the appellant could
render the Commission liable to pay compensation.
The decision in question is based on the authorisation
conferred by Article 2(3) of Council Decision 95/408/EC,
which lays down, according to the relevant conditions
and content, and in conjunction with Article 2(2), specific,
restricted criteria to be observed by the Commission.
The Commission is required to ascertain whether the
authorities of the third country concerned have given
guarantees at least equivalent to those provided for by
Council Directive 91/493/EEC or, as the case may be,
whether those guarantees continue to exist.

Findings made in respect of such guarantees must reflect
concrete circumstances which are specified in Council
Directive 91/943 and concern conditions for the pro-
duction and placing on the market of the products to be
imported from the third country in question, especially
as regards the maintenance of hygiene standards for the
protection of consumers. Those conditions are to be
specifically determined. Agricultural or economic con-
siderations cannot be taken into consideration in such
determination.

— In any event, the Court of First Instance disregarded the
fact that the Commission manifestly and significantly
exceeded any discretion which it may have had: although
the veterinary inspectors instructed by the Commission
stated in their report that their assessment of the ‘general
situation in Kazakhstan so far as concerns the veterinary

16.2.2002

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Official Journal of the European Communities

C 44/9

legislation in force, current health policy and veterinary
supervision’ also applied to caviar, their findings in fact
related exclusively to the production of horse meat and
pike fillets. The Commission made a proposal to the
Veterinary Committee without having itself carried out
any examination or appraisal and without submitting the
inspectors’ report.

— The Court of First Instance further disregarded the fact
that, in addition, the Commission clearly violated the
principle of the protection of legitimate expectations, to
the detriment of the appellant: according to Commission
Decision 1999/136 of 28 January 1999, published in the
Official Journal of 18 February 1999, the importation of
caviar from Kazakhstan continued to be permitted (List II).
Thereafter, at the beginning of March 1999, the appellant
concluded contracts for the supply of caviar from Kazakh-
stan for the 1999 season. However, in January 1999, at
all events before 18 February 1999, the Commission was
already aware of the results of the inspection, as set out
to the
in the report, which prompted it to submit
Veterinary Committee, for consideration at its meeting
on 23 February 1999, a draft providing for deletion from
List II. In view of the small number of importers affected,
it would have been easy for the Commission to inform
those undertakings of the results of the inspection visit,
which were available to it
the
consequences which those results might have for the
importation of caviar.

in January, and of

(1) Decision 1999/244/EC amending Decision 97/296/EC drawing
up the list of third countries from which the import of fishery
products is authorised for human consumption (OJ 1999 L 91,
p. 37).

Action brought on 21 December 2001 by the Commission
of the European Communities against the French Republic

(Case C-496/01)

(2002/C 44/16)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 21 December
2001 by the Commission of the European Communities,
represented by Maria Patakia, acting as Agent.

— requiring bio-medical analysis laboratories estab-
lished in other Member States to have their place of
business on French territory as a condition for
obtaining the requisite operating authorisation; and

— precluding any reimbursement of the cost of bio-
medical analyses carried out by bio-medical analysis
laboratories established in another Member State,

the French Republic has failed to fulfil its obligations
under Articles 43 and 49 of the EC Treaty; and

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

— Restriction of Article 43 EC by virtue of the fact that the
requisite administrative authorisation for operating a bio-
medical analysis laboratory (Article L 757 of the Public
Health Code) can only be delivered by the Préfet for the
département in which the laboratory operates (Article 15
of Decree No 76-1004). That provision precludes the
setting up of an establishment having the status of an
office or agency. The Commission does not dispute that
a Member State may provide for rules governing the
authorisation for operating laboratories. Such rules must
however take account of the requirements and safeguards
already complied with in another Member State of
establishment without disregarding that a higher level of
protection may exist in the first Member State. Otherwise,
failure to take into account safeguards already complied
with in another Member State would lead to a duplicate
procedure for applying for authorisation over and above
the authorisation which the foreign laboratory has already
obtained in its Member State of establishment. Such a
situation runs counter to the principle of proportionality
which requires that
the objectives pursued must be
achieved by the least restrictive means.

restricts

financial

assistance

— Restriction of Article 43 EC by virtue of the fact that the
French legislation (Article R 332-3 of the Social Security
Code)
from sickness
insurance schemes only to exceptional cases, that is to
say where the insured person is able to show that he
cannot obtain the appropriate treatment on French
territory, which is moreover not the case so far as
concerns bio-medical analysis laboratories. That consti-
tutes a barrier both to the freedom to provide services
(where a laboratory does not have an establishment in
France) and to the right to set up secondary establish-
ments (where a laboratory has a secondary establishment
where analyses are not however carried out).

The applicant claims that the Court should:

1. Declare that by:

The Commission takes the view that such restrictions are not
justified on public-health grounds in particular. The safeguards
afforded by the Council directives in the field (93/16/EEC,
85/432/EEC, 85/433/EEC, 78/1026/EEC and 78/1027/EEC)