Case C-420/02: Action brought on 21 November 2002 by the Commission of the European Communities against the Hellenic Republic
Date: 2003-02-08
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, environmental protection, waste disposal, waste management

8.2.2003

EN

Official Journal of the European Union

C 31/7

Q u e s t i o n 4

Does it make any difference to the answers to questions 1 to 3
above if payment is made in respect of the relevant transactions
at a time when any onward supply of the goods would have
been an exempt supply with refund of VAT at the preceding
stage as permitted by Article 28(2)(a) of the Directive?

Q u e s t i o n 5

How is the Directive to be interpreted with particular reference
to the following questions? In circumstances such as the
relevant circumstances and with reference to transactions such
as the relevant transactions:

a)

b)

should supplies be treated as having been made by the
outside suppliers to the purchasing companies with no
supplies being made to or by the vendor companies? or

should supplies be treated as having been made by the
outside suppliers to the vendor companies with no
supplies being made by the vendor companies to the
purchasing companies?

how are Article 17 of the Directive and the rules on deduction
to be interpreted? (With reference to paragraph e), if the law
does not change in the way described the purchasing compani-
es are entitled to terminate their contracts with the vendor
companies and claim refunds of the prices paid. In the relevant
transactions the contracts between the purchasing companies
and the vendor companies contain provisions permitting such
terminations.)

Q u e s t i o n 7

The Tribunal found (at paragraph 89 of the Decision) that
‘none of the individuals in a position to take decisions for
[BMSL and Gatwick Park]... had any motive or purpose of
substance other than to carry through the VAT avoidance
scheme.’ The Appellants have, in their Notice of Appeal to the
High Court, challenged that finding of fact. If that finding of
fact were to be set aside on appeal would it make any, and if
so, what difference to the answers to questions 1 to 6 above
inclusive?

(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, 13.06.77, p. 1).

Q u e s t i o n 6

In circumstances where each vendor company, in the course
of an economic activity, makes supplies to a purchasing
company and:

a)

the purchasing companies have entered into agreements
with the vendor companies to be supplied with goods;

b)

the goods are invoiced and paid for in advance of delivery;

c)

d)

e)

VAT is charged on the advance payment in accordance
with the second sub-paragraph of Article 10(2) of the
Directive;

the goods are to be used by the purchasing companies in
making supplies which,
if made at the time of the
payment, would have been exempt supplies with a right
to refund at the preceding stage, but

each purchasing company intends to take delivery of the
goods under the agreements only if the law changes in
such a way that the purchasing company’s use of the
goods will be a use in making exempt supplies without a
right of refund

Action brought on 21 November 2002 by the
Commission of the European Communities against the
Hellenic Republic

(Case C-420/02)

(2003/C 31/11)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 21 No-
vember 2002 by the Commission of the European Communi-
ties, represented by Minas Konstantinidis, of its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to adopt the necessary measures
to ensure that the disposal or recovery of waste will be
carried out without endangering human health, without
risk to water, air, soil, plants and animals and without
causing a nuisance through noise or odours, and by
granting a permit which does not contain the necessary
information, the Hellenic Republic has failed to fulfil its
obligations under Articles 4 and 9 of Directive 75/442/
EEC (1) on waste as amended by Directive 91/156/EEC (2);

C 31/8

EN

Official Journal of the European Union

8.2.2003

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

1.

2.

The Commission considers that the measures taken are
not sufficient to ensure that the landfill site ‘Pera Galinon’
is operated in a manner which does not create risks to
the natural and man-made environment and which is
consistent with the obligations arising from Article 4 of
the directive.

In the Commission’s view, the Hellenic Republic has
exceeded the limits of the discretion conferred on it by
Article 4 of the directive, since over a long period it has
taken effective action to avert pollution of the
not
environment and to protect the health of inhabitants
from the unlawful deposit of waste at the Pera Galinon
site in the prefecture of Heraklion, Crete.

3.

The Commission observes that the landfill site in question
operates without a permit which meets the conditions
laid down in Article 9 of the directive.

( 1) OJ No L 194, 25.7.1975, p. 39.
( 2) OJ No L 78, 26.3.1991, p. 32.

Action brought on 22 November 2002 by the
Commission of the European Communities against the
Hellenic Republic

1.

2.

The Commission considers that the tax which is levied in
respect of the validation of invoices for the import of
pharmaceutical products that come from the Community
is contrary to Article 12 of the EC Treaty (now Article 25
EC) and thus constitutes a charge having an effect
equivalent to that of customs duty.

The Commission observes that classification as a charge
having equivalent effect does not depend on what the
charge is called or its amount.

3. None of the three exceptions preventing classification as

a charge having equivalent effect applies.

4.

Infringement of Article 133 of the EC Treaty.

Action brought on 3 December 2002 by the Commission
of the European Communities against the Republic of
Finland

(Case C-437/02)

(2003/C 31/13)

(Case C-426/02)

(2003/C 31/12)

An action against the Republic of Finland was brought
before the Court of Justice of the European Communities on
3 December 2002 by the Commission of
the European
Communities, represented by M. Huttunen and T. van Rijn,
acting as Agents, with an address for service in Luxembourg.

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 22 No-
vember 2002 by the Commission of the European Communi-
ties, represented by Xavier Lewis and Minas Konstantinidis, of
its Legal Service.

The Commission claims that the Court should

— declare that

The Commission claims that the Court should:

— declare that by applying, for the benefit of the Ethniko
Organismo Farmakon (National Organisation for Medi-
cines), a charge in respect of the validation of invoices on
the import of raw materials for pharmaceutical use, semi-
finished products and finished products from other
Member States or non-member countries, the Hellenic
Republic has
its obligations under
Articles 23, 25 and 133 of the Treaty establishing the
European Community;

failed to fulfil

— order the Hellenic Republic to pay the costs.

1.

2.

3.

by failing to enact appropriate detailed rules for the
distribution and use of the fishing rights allocated to
it,

and by failing to monitor compliance with the
Community legislation on preservation by monitor-
ing fishing and related activities and by appropriate
inspection of the fishing fleet and related activities,

and by failing to prohibit provisionally fishing by
vessels flying its flag or registered in its territory
when the quotas allocated to it were deemed to be
exhausted,