Judgment of the Court (Sixth Chamber) of 27 November 2001 in Case C-424/99: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil obligations — Directive 89/105/EEC — "Positive list" for the purposes of Article 6 of Directive 89/105/EEC — Time-limit for examination of an application for inclusion of a medicinal product on the list — Obligation to provide for a judicial remedy in the event of refusal)
Date: 2002-04-06
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, drugs classification, redemption, social security

6.4.2002

EN

Official Journal of the European Communities

C 84/11

JUDGMENT OF THE COURT

(Fifth Chamber)

8 January 2002

in Case C-409/99 (Reference for a preliminary ruling
from the Verwaltungsgerichtshof): Metropol Treuhand
WirtschaftstreuhandgmbH v Finanzlandesdirektion für
Steiermark and between Michael Stadler and Finanz-
landesdirektion für Vorarlberg (1)

(Sixth VAT Directive — Article 17(6) and (7) — Right to
deduct input VAT — Exclusions provided for under national
laws at the date of entry into force of the directive —
Exclusions for cyclical economic reasons — Consultation of
the Advisory Committee on value added tax)

(2002/C 84/18)

(Language of the case: German)

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

In Case C-409/99: reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Metropol Treuhand WirtschaftstreuhandgmbH and Finanz-
landesdirektion für Steiermark and between Michael Stadler
and Finanzlandesdirektion für Vorarlberg, on the interpret-
ation of Article 17(6) and (7) 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 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: L.A. Geelhoed, Registrar: D. Louter-
man-Hubeau, Head of Division, has given a judgment on
8 January 2002, in which it has ruled:

1.

The second subparagraph of Article 17(6) 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
— precludes a Member State from excluding, after the entry
into force of the Sixth Directive, expenditure relating to certain
motor vehicles from the right to deduct value added tax where,
at the date of entry into force of that directive, that expenditure
gave rise to the right to deduct value added tax in accordance
with a consistent practice of the public authorities of that State
on the basis of a ministerial circular.

2.

The first sentence of Article 17(7) of the Sixth Directive must
be interpreted as not authorising a Member State to exclude
goods from the system of deducting value added tax without

first consulting the committee provided for in Article 29 of the
directive. That provision also does not authorise a Member
State to adopt measures excluding goods from the system of
deducting value added tax which contain no indication as to
their limitation in time and/or which form part of a package of
structural adjustment measures whose aim is to reduce the
budget deficit and allow State debt to be repaid.

(1) OJ C 20 of 22.1.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 November 2001

in Case C-424/99: Commission of the European Communi-
ties v Republic of Austria (1)

(Failure by a Member State to fulfil obligations — Directive
89/105/EEC — ‘Positive list’ for the purposes of Article 6 of
Directive 89/105/EEC — Time-limit for examination of an
application for inclusion of a medicinal product on the list
— Obligation to provide for a judicial remedy in the event
of refusal)

(2002/C 84/19)

(Language of the case: German)

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

In Case C-424/99: Commission of the European Communities
(Agent: J.C. Schieferer) v Republic of Austria (Agent: C. Pesen-
dorfer) — application for a declaration that, by not adopting
or by not communicating to the Commission within the
prescribed period the laws, regulations and administrative
provisions necessary to comply with Council Directive
89/105/EEC of 21 December 1988 relating to the transparency
of measures regulating the prices of medicinal products for
human use and their inclusion in the scope of national health
insurance systems (OJ 1989 L 40, p. 8), the Republic of Austria
has failed to fulfil its obligations under the EC Treaty — the
Court (Sixth Chamber), composed of: N. Colneric, President of
the Second Chamber, acting for the President of the Sixth
Chamber, C. Gulmann, R. Schintgen, V. Skouris (Rapporteur)
and J. N. Cunha Rodrigues, Judges; A. Tizzano, Advocate
General; H. A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 27 November 2001, in which it:

C 84/12

EN

Official Journal of the European Communities

6.4.2002

1. Declares that, by not adopting within the prescribed period the
laws, regulations and administrative provisions necessary to
comply with the second sentence of Article 6(2) of Council
Directive 89/105/EEC of 21 December 1988 relating to the
transparency of measures regulating the prices of medicinal
products for human use and their inclusion in the scope of
national health insurance systems, the Republic of Austria has
failed to fulfil its obligations under that article;

market in Belgium, France and the Netherlands (OJ 1996 L 99,
p. 16), as amended by Commission Regulation (EC) No 841/96
of 7 May 1996 (OJ 1996 L 114, p. 18),the Court (Fifth
Chamber), composed of: P. Jann, President of the Chamber,
D.A.O. Edward, A. La Pergola, L. Sevo´ n (Rapporteur) and
M. Wathelet, Judges, Advocate General: F.G. Jacobs, Registrar:
H.A. Rühl, Principal Administrator, has given a judgment on
8 January 2002, in which it has ruled:

2. Dismisses the remainder of the application;

3. Orders the parties to bear their own costs.

1.

(1) OJ C 6 of 8.1.2000.

The Community provisions applicable to the common agricul-
tural policy in the beef and veal sector are to be interpreted as
meaning that, in response to information concerning a possible
link between bovine spongiform encephalopathy and Creutz-
feldt-Jakob disease in humans and to the bovine spongiform
encephalopathy crisis in the United Kingdom, the Member
States were entitled, under Article 8(1)(a) of Council Directive
90/425/EEC of 26 June 1990 concerning veterinary and
zootechnical checks applicable in intra-Community trade in
certain live animals and products with a view to the completion
of
the internal market, as amended by Council Directive
92/118/EEC of 17 December 1992 laying down animal
health and public health requirements governing trade in and
imports into the Community of products not subject to the said
requirements laid down in specific Community rules referred to
in Annex A (I) to Directive 89/662/EEC and, as regards
pathogens, to Directive 90/425:

— to order the slaughter of young bovine animals originating

from the United Kingdom present in their territory and,

— since there could be serious grounds for believing that, in
the absence of fair compensation, farmers might conceal
the origin of animals in their possession in order to avoid
their slaughter and the resulting financial loss, to adopt a
compensation measure ancillary to the measure requiring
slaughter of the animals.

2.

Even though the Member States had the power to adopt
compensation measures under Article 8(1)(a) of Directive
90/425, as amended by Directive 92/118, Community law,
in particular Commission Regulation (EC) No 717/96 of
19 April 1996 adopting exceptional support measures for the
beef and veal market in Belgium, France and the Netherlands,
as amended by Commission Regulation (EC) No 841/96 of
7 May 1996, precluded the amount of compensation to farmers
from being determined by national provisions from the date
upon which that regulation became applicable.

(1) OJ C 20 of 22.1.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

8 January 2002

in Case C-428/99 (Reference for a preliminary ruling from
the College van Beroep voor het bedrijfsleven): H. van den
Bor BV v Voedselvoorzieningsin- en verkoopbureau (1)

(Agriculture — Combating bovine spongiform encephalo-
pathy — Powers of the Member States — Compensation for
farmers following the slaughter of United Kingdom calves
ordered during the bovine spongiform encephalopathy crisis
in March 1996)

(2002/C 84/20)

(Language of the case: Dutch)

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

In Case C-428/99: reference to the Court under Article 234
EC by the College van Beroep voor het bedrijfsleven (Nether-
lands) for a preliminary ruling in the proceedings pending
before that court between H. van den Bor BV and Voedsel-
the
voorzieningsin- en verkoopbureau on the power of
Member States to compensate cattle farmers and determine
the amount of compensation due following the slaughter of
United Kingdom calves ordered during the bovine spongiform
encephalopathy crisis in March 1996 and on the interpretation
of Commission Regulation (EC) No 717/96 of 19 April 1996
adopting exceptional support measures for the beef and veal