Case C-303/01: Reference for a preliminary ruling by the Arios Pagos (Greece) by order of 10 July 2001 in the case of Alexandros K. Kefalas and Others against (1) Elliniko Dimosio (the Greek State), (2) Organismos Ikonomikis Anasigkrotisis Epikhirision AE, legally represented by the liquidator, Ethniki Kefalaiou Anonimi Etairia Diakhirisis Energitikou kai Pathitikou, (3) Athinaiki Khartopiia AE, and (4) Georgios I. Tsamasfiros and Others
Date: 2002-03-02
Institutions: Court of Justice
Subjects: Greece, State aid, capital increase, interpretation of the law, public limited company, share capital

C 56/2

EN

Official Journal of the European Communities

2.3.2002

& Excise and CSC Financial Services Ltd, on the interpretation
of Article 13B(d)(5) of
Sixth Council Directive
the
(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 assess-
ment (OJ 1977 L 145, p. 1), the Court (Fifth Chamber),
composed of: P. Jann, President of the Chamber, A. La Pergola,
L. Sevo´ n (Rapporteur), M. Wathelet and C.W.A. Timmermans,
Judges, Advocate General: D. Ruiz-Jarabo Colomer, Registrar:
D. Louterman-Hubeau, Head of Division, has given a judgment
on 13 December 2001, in which it has ruled:

On a proper construction of Article 13B(d)(5) of the 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

— ‘transactions in securities’ means transactions liable to create,
alter or extinguish parties’ rights and obligations in respect of
securities;

— ‘negotiation in securities’ does not cover services limited to
providing information about a financial product and, as
the case may be, receiving and processing applications for
subscription to the relevant securities, without issuing them.

(1) OJ C 233 of 12.8.2000.

to comply with Council Directive 98/76/EC of 1 October
1998 amending Directive 96/26/EC on admission to the
occupation of road haulage operator and road passenger
transport operator and mutual recognition of diplomas, certifi-
cates and other evidence of formal qualifications intended to
facilitate for these operators the right to freedom of establish-
ment in national and international transport operations (OJ
in any event, by not notifying
1998 L 277, p. 17) or,
those provisions to the Commission, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive — the Court (First Chamber), composed of: P. Jann
(Rapporteur), President of
the Chamber, L. Sevo´ n and
M. Wathelet, Judges; F.G. Jacobs, Advocate General; R. Grass,
Registrar, has given a judgment on 13 December 2001, in
which it:

1. Declares that, by failing to adopt within the prescribed period
the laws, regulations and administrative provisions necessary to
comply with Council Directive 98/76/EC of 1 October 1998
amending Directive 96/26/EC on admission to the occupation
of road haulage operator and road passenger transport operator
and mutual recognition of diplomas, certificates and other
evidence of formal qualifications intended to facilitate for these
operators the right to freedom of establishment in national
and international transport operations, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive.

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 118 of 21.4.2001.

JUDGMENT OF THE COURT

(First Chamber)

13 December 2001

in Case C-107/01: Commission of the European Communi-
ties v Grand Duchy of Luxembourg (1)

(Failure by a Member State to fulfil its obligations —
Directive 98/76/EC — Failure to transpose within the
prescribed period)

Reference for a preliminary ruling by the Arios Pagos
(Greece) by order of 10 July 2001 in the case of Alexan-
dros K. Kefalas and Others against (1) Elliniko Dimosio
(the Greek State), (2) Organismos Ikonomikis Anasigkrot-
isis Epikhirision AE, legally represented by the liquidator,
Ethniki Kefalaiou Anonimi Etairia Diakhirisis Energitikou
kai Pathitikou, (3) Athinaiki Khartopiia AE, and (4) Geor-
gios I. Tsamasfiros and Others

(2002/C 56/03)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Case C-303/01)

(2002/C 56/04)

In Case C-107/01: Commission of the European Communities
(Agent: M. Wolfcarius) v Grand Duchy of Luxembourg (Agent:
J. Faltz) — application for a declaration that by failing to adopt
the laws, regulations and administrative provisions necessary

Reference has been made to the Court of Justice of the
European Communities by order of the Arios Pagos (Greek
Supreme Court) of 10 July 2001, received at the Court Registry
on 30 July 2001, for a preliminary ruling in the case of
Alexandros K. Kefalas and Others against (1) Elliniko Dimosio

2.3.2002

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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.