Case C-463/01: Action brought on 3 December 2001 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-03-02
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, bottling, environmental protection, waste management

2.3.2002

EN

Official Journal of the European Communities

C 56/3

(the Greek State), (2) Organismos Ikonomikis Anasigkrotisis
Epikhirision AE, legally represented by the liquidator, Ethniki
Kefalaiou Anonimi Etairia Diakhirisis Energitikou kai Pathiti-
kou, (3) Athinaiki Khartopiia AE, and (4) Georgios I. Tsamasfi-
ros and Others on the following question:

In view of the fact that Article 25 of the Second Council
Directive 77/91/EEC (1) of 13 December 1976 does not lay
down a penalty for any infringement of that article,
is it
compatible with the objectives pursued by that directive for a
provision of national law to declare valid shares which have
resulted from an increase, pursuant to ministerial decisions, in
the share capital of public limited companies where the
increase is invalid as contrary to Article 25 of the directive,
provided that the provision confers, in return, a right against
the State to full compensation for any harm which the pre-
existing shareholders of those public limited companies have
suffered as a consequence of the increase. In particular, may
that right to full compensation be regarded, in view inter alia
of the long time which has since passed and the successive
increases which have followed (by decisions of the general
meeting), as equivalent, under Community law, to recognition
that the shares which have resulted from the invalid increase
in the share capital are invalid?

(1) OJ L 26 of 31.1.1977, p. 1.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that court of 17 May 2001 in the case
of Finanzamt Groß-Gerau against MKG-Kraftfahrzeuge-
Factoring GmbH

(Case C-305/01)

(2002/C 56/05)

have conferred on taxable persons a right to opt for
taxation? Which
in
listed
the
Article 13B(d) of Directive 77/388/EEC are involved?

transactions

of

(1) OJ L 145, p. 1.

Reference for a preliminary ruling, by order of the
Bundesfinanzhof of 27 September 2001 in the case of
KapHag Renditefonds, 35 Spreecenter Berlin-Hellersdorf,
3. Tranche GbR against Finanzamt Charlottenburg

(Case C-442/01)

(2002/C 56/06)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 27 September 2001, which was
received at the Court Registry on 16 November 2001, for a
preliminary ruling in the case of KapHag Renditefonds,
35 Spreecenter Berlin-Hellersdorf, 3. Tranche GbR v Finanzamt
Charlottenburg on the following questions:

1. Where a partnership assumes a partner on payment of a
capital contribution in cash, does it effect a supply to him
for consideration within the meaning of Article 2(1) of
Directive 77/388/EEC? (1)

2.

If so, is it an incidental transaction for the purposes of
Article 19(2), sentence 2, of Directive 77/388/EEC, and is
the taxable person entitled to rely on Article 19(2),
sentence 2, of Directive 77/388/EEC, according to which
such incidental transactions do not exclude a deduction?

(1) OJ L 145, p. 1.

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 17 May 2001, received at the Court
Registry on 3 August 2001,
for a preliminary ruling in
the case of Finanzamt Groß-Gerau v MKG-Kraftfahrzeuge-
Factoring GmbH on the following questions:

1.

Can a factoring company which buys debts and assumes
liability for the risk of loss in relation to those debts be
said to be using goods and services received by it for the
purposes of its transactions?

2. Do such activities involve taxable transactions or trans-
actions (they involve the latter in any event) for the
purposes of Article 13B(d) of Directive 77/388/EEC (1)
which may be taxed to the extent that the Member States

Action brought on 3 December 2001 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-463/01)

(2002/C 56/07)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 3 December 2001 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser
in the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of the Commission’s Legal Service, Wagner Centre,
Kirchberg.

C 56/4

EN

Official Journal of the European Communities

2.3.2002

The applicant claims that the Court should:

(1) declare that, by introducing, by means of Paragraphs 8(1)
and 9(2) of the Verpackungsverordnung 1998, a system
for the re-use of packaging for products which are
required, under Directive 80/777/EEC, to be bottled at
source, the Federal Republic of Germany has infringed its
obligations under Article 5 of European Parliament and
Council Directive 94/62/EC (1) of 20 December 1994 on
packaging and packaging waste,
in conjunction with
Article 28 EC, and Article 3 in conjunction with point
2(d) of Annex II to Council Directive 80/777/EEC (2) of
15 July 1980 on the approximation of the laws of the
Member States relating to the exploitation and marketing
of natural mineral waters;

(2) order the Federal Republic of Germany to pay the costs.

The argument that the measures in issue serve environmental
purposes is not enough to justify them, since they are
disproportionate. This is because, where the journey to be
travelled is greater than a certain distance, the burden imposed
on the environment outweighs the ecological advantages
connected with the use of refillable containers. For the
purposes of the present proceedings, it is immaterial what
distance actually represents that threshold in respect of mineral
water, since the German rules apply, quite irrespective of any
transportation distance, to all mineral waters to be bottled at
source, and thus also cover cases in which that distance is
considerable.

(1) OJ L 365, 31.12.1994, p. 10.
(2) OJ L 229, 30.8.1980, p. 1.

Pleas in law and main arguments

Reference for a preliminary ruling by the Oberster
Gerichthof by order of 8 November 2001 in the case of
Johann Gruber against Bay Wa Aktiengesellschaft

The rules laid down in Paragraphs 8(1) and 9(2) of the
Verpackungsverordnung (Packaging Order) 1998 are incom-
patible, as regards natural mineral waters to be bottled at
source, with Article 5 of the packaging directive and Article 28
EC, since they result in an impairment of trade which cannot
be justified on grounds of environmental protection. The
interaction of the German legislation is such that it is in the
interests of producers of mineral waters in other Member
States who wish to market their products in Germany to use
refillable containers if they wish to avoid the obligation to
collect a deposit in respect of the packaging distributed by
them and to retain the possibility of participating in general
return systems. Although that legislation undeniably favours
the use of refillable containers rather than non-reusable ones,
national measures to promote the use of refillable containers
are only in accordance with Article 5 of Directive 94/62/EC if,
at the same time, they meet the requirements of Article 28 EC.
The German rules in the present case, however, constitute a
measure the effect of which is equivalent to a quantitative
restriction within the meaning of Article 28 EC. The German
measures operate to make the distribution of natural mineral
waters from other Member States more difficult and/or more
expensive. It is true that German producers must also, as the
case may be, transport empty refillable containers over long
distances; but, where bottling takes place outside Germany,
the distance between the bottling plant and the place of
consumption in Germany is in most cases significantly greater
than when bottling and consumption both take place within
Germany. The possibility, for foreign mineral water producers,
of participating in a system of standardised re-usable packaging
would result in additional conversion costs for those producers
whilst, at best, reducing the need for the return transportation
of empty refillable containers.

(Case C-464/01)

(2002/C 56/08)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberste Gerichtshof
(Supreme court of Austria) of 8 November 2001, which was
received at the Court Registry on 4 December 2001, for a
preliminary ruling in the case of Johann Gruber against Bay
Wa Aktiengesellschaft, on the following questions:

1. Where the purposes of a contract are partly private, does
the status of ‘consumer’ for the purposes of Article 13 of
the Convention depend on which of the private and the
trade or professional purposes is predominant, and what
criteria are to be applied in determining which of the
private and the trade or professional purposes predomi-
nates?

2. Does the determination of the purpose depend solely on
the circumstances which could be objectively ascertained
by the other party to the contract with the consumer?

3.

In case of doubt, is a contract which may be attributed
both to private and to trade or professional activity to be
regarded as a consumer contract?