Case C-377/02: Reference for a preliminary ruling by the Raad van State — IXe Kamer (Belgium) by judgment of that Court of 18 October 2002 in the case of NV Firma Leon van Parys against Belgisch Interventie- en Restitutiebureau (BIRB)
Date: 2003-01-11
Institutions: Court of Justice
Subjects: GATT, import licence, import policy, import restriction, interpretation of the law, tariff quota, tropical fruit

11.1.2003

EN

Official Journal of the European Communities

C 7/9

If the answer to the first question is in the negative:

2.

Is Article 45(1) of Regulation (EEC) No 1408/71 of the
Council of 14 June 1971 (1) on the application of social
security schemes to employed persons, to self-employed
persons and to members of their families moving within
the Community, as amended and updated by Council
Regulation (EC) No 118/97 of 2 December 1996 (2), to
be interpreted as precluding a rule of a Member State
which requires inter alia, as a condition of entitlement to
an early old-age pension in the event of unemployment,
that the worker concerned must have drawn a cash
benefit on account of his unemployment from the
unemployment insurance scheme of that Member State
within a certain period prior to the qualifying date?

( 1) OJ L 149 [1971], p. 2.
( 2) OJ L 28 [1997], p. 1.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 18 October
2002 in the case of Stichting ‘Goed Wonen’ against
Staatssecretaris van Financiën

(Case C-376/02)

(2003/C 7/15)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
ber 2002, received at the Court Registry on 21 October 2002,
for a preliminary ruling in the case of Stichting ‘Goed
Wonen’ against Staatssecretaris van Financiën on the following
question:

Under circumstances such as those set out at paragraph 6.3.4.
above, do Articles 17 and 20 of the Sixth Directive or
the European law principles of the protection of legitimate
expectations and of legal certainty preclude — in a case not
involving fraud or abuse or any question of a change in
planned use, as mentioned in paragraphs 50 and 51 of the
judgment of the Court of Justice in Schloßstraße — the
adjustment of VAT not deducted by a taxable person which he
paid in respect of (immovable) property which is supplied to
him and which he originally intended for letting (which is not
subject
to VAT), but subsequently used for a transaction
subject to VAT (in the present case, the grant of a usufructuary

right in rem), being revoked on the sole ground that, as a result
of a legislative amendment which had not yet taken effect at
the time at which the abovementioned transaction was carried
out, that transaction is regarded with retroactive effect as an
exempt transaction establishing no right to deduct?

Reference for a preliminary ruling by the Raad van State
— IXe Kamer (Belgium) by judgment of that Court of
18 October 2002 in the case of NV Firma Leon van Parys
against Belgisch Interventie- en Restitutiebureau (BIRB)

(Case C-377/02)

(2003/C 7/16)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Raad van State
(Council of State) of 18 October 2002, received at the Court
Registry on 21 October 2002, for a preliminary ruling in the
case of NV Firma Leon van Parys against Belgisch Interventie-
en Restitutiebureau (BIRB) (Belgian Intervention and Refund
Bureau) on the following questions:

1. Do Council Regulation (EEC) No 404/93 (1) of 13 Febru-
ary 1993 on the common organisation of the market in
bananas, as amended by Council Regulation (EC)
No 1637/98 (2) of 20 July 1998, Commission Regulation
(EC) No 2362/98 (3) of 28 October 1998 laying down
detailed rules for the implementation of Council Regu-
lation (EEC) No 404/93 regarding imports of bananas into
the Community, Commission Regulation (EC) No 2806/
98 (4) of 23 December 1998 on the issuing of import
licences for bananas under the tariff quotas and for
traditional ACP bananas for the first quarter of 1999 and
on the submission of new applications, Commission
Regulation (EC) No 102/99 (5) of 15 January 1999 on the
issuing of import licences for bananas under the tariff
quotas and for traditional ACP bananas for the first
quarter of 1999 (second period) and Regulation (EC)
No 608/1999 (6) of 19 March 1999 on the issuing of
import licences for bananas under the tariff quotas and
for traditional ACP bananas for the second quarter of
1999 and on the submission of new applications infringe
Article I, Article XIII:1 and Article XIII:2(d) of GATT
1994, taken separately or together, inasmuch as they:

— introduce to the benefit of twelve countries named
in the annex to Regulation No 1637/98 a joint
quota of a maximum of 857 700 kg [sic] of bananas
(‘traditional ACP bananas’) and, moreover, in that
that quota does not accord with a distribution of

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Official Journal of the European Communities

11.1.2003

trade that approaches trade without restrictions in
so far as it is included in the system introduced by
Regulation 1637/98, the import of bananas being
regulated solely on the basis of a tariff quota;

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 18 October
2002 in the case of Waterschap Zeeuws Vlaanderen
against Staatssecretaris van Financiën

— introduce a tariff quota for a total quantity of
2 535 000 tonnes for third countries and for non-
traditional ACP bananas and then allocate that tariff
quota in percentage terms on the basis of a non-
representative period, since the import of bananas
in the period from 1994 to 1996 was already subject
to restrictive conditions?

2. Do the regulations referred to in paragraph 1 infringe
Article 4 of the Framework Agreement of 23 April 1993
between the European Economic Community and the
Cartagena Group and its member countries inasmuch as
by that agreement, the European Community undertook
to have its relations with Ecuador governed by the
provisions of GATT and to grant that country most-
favoured-nation treatment?

3. Do the Commission regulations referred to in paragraph 1
infringe the principle of the protection of legitimate
expectations and the principle of good faith in inter-
national public law and international customary law,
inasmuch as the Commission has not fulfilled the obli-
gations arising for the Community from GATT 1994, has
misused legal procedures and has not taken account of
judicial proceedings and of the outcome of an inter-
national dispute settlement procedure inasmuch as,
despite declarations made at the time of the adoption of
Regulation No 1637/98, it has not established a system
under which import licences for bananas are issued to
‘genuine importers’?

4. Has the Commission exceeded the authority given to it
by Council Regulation No 404/93, as amended by
Regulation No 1637/98, by adopting the tariff quota for
the import of bananas while disregarding the obligations
which arise for the Community from GATT 1994 and
GATS or which must, where appropriate, be taken into
account, because of its avowed intention to adapt the
regime for the import of bananas into the Community to
the applicable WTO agreements, as a positive rule of law
to be integrated into Community law?

( 1) OJ L 47 [1993], p. 1.
( 2) OJ L 210 [1998], p. 28.
( 3) OJ L 293 [1998], p. 32.
( 4) OJ L 349 [1998], p. 32.
( 5) OJ L 11 [1999], p. 16.
( 6) OJ L 75 [1999], p. 18.

(Case C-378/02)

(2003/C 7/17)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
ber 2002, received at the Court Registry on 21 October 2002,
for a preliminary ruling in the case of Waterschap Zeeuws
Vlaanderen against Staatssecretaris van Financiën on the
following questions:

1. Does a body governed by public law have, as regards a
capital item acquired by it which it supplies for consider-
ation to a third party, in respect of which supply it must
be regarded as a taxable person, a right to adjust the
turnover tax paid in respect of that acquisition pursuant
to Article 20 (in particular paragraphs 2 and 3) of the
Sixth Directive (1) in so far as it has used that item for
activities in which it engages as a public authority under
Article 4(5) of that directive?

2. Does a body governed by public law have, under the
Sixth Directive, the right wholly to exclude a capital item
used partly for activities engaged in as a taxable person
and partly for activities engaged in as a public authority
from its capital assets, as the Court of Justice has ruled in
respect of taxable natural persons?

(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 L 145 of 13.06.1977, p. 1).