Order of the Court (First Chamber) of 24 July 2003 in Case C-166/02 (Reference for a preliminary ruling from the Tribunal Judicial da Comarca de Alcácer do Sal): Daniel Fernando Messejana Viegas v Companhia de Seguros Zurich SA, Mitsubishi Motors de Portugal SA (Article 104(3) of the Rules of Procedure — Answer which may be clearly deduced from existing case-law — Second Directive 84/5/EEC — Compulsory insurance against civil liability in respect of motor vehicles — Types of civil liability — Minimum amounts of cover)
Date: 2003-09-20
Institutions: Court of Justice
Subjects: approximation of laws, civil liability, insurance, interpretation of the law, motor vehicle, personal accident insurance

C 226/2

EN

Official Journal of the European Union

20.9.2003

— third, the compensation does not exceed what is necessary to
cover all or part of the costs incurred in discharging the
public service obligations, taking into account the relevant
receipts and a reasonable profit
for discharging those
obligations;

— fourth, where the undertaking which is to discharge public
service obligations is not chosen in a public procurement
procedure, the level of compensation needed has been deter-
mined on the basis of an analysis of the costs which a
typical undertaking, well run and adequately provided with
means of transport so as to be able to meet the necessary
public service requirements, would have incurred in dischar-
ging those obligations, taking into account the relevant
for discharging the
receipts and a reasonable profit
obligations.

3. Article 77 of the EC Treaty (now Article 73 EC) cannot be
applied to public subsidies which compensate for the additional
costs incurred in discharging public service obligations without
taking into account Regulation No 1191/69, as amended by
Regulation No 1893/91.

Marion Roussel Ltd, established in Denham (United Kingdom),
Hoechst Marion Roussel SA, established in Brussels (Belgium),
Marion Merrell SA, established in Puteaux (France), Marion
Merrell SA, established in Barcelona (Spain), Sanova Pharma
GmbH, established in Vienna (Austria), Temmler Pharma GmbH
& Co.KG, established in Marburg (Germany), Schuck GmbH,
established in Schwaig (Germany), Laboratoires Roussell Lda,
established in Mem Martins (Portugal), Laboratoires Roussell
Diamant SARL, established in Puteaux, Roussel
Iberica SA,
established in Barcelona,
(represented by B. Sträter and
M. Ambrosius), Gerot Pharmazeutika GmbH, established in
Vienna,
(represented by K. Grigkar), Cambridge Healthcare
Supplies Ltd, established in Rackhearth (United Kingdom),
(represented by M. D. Vaughan, QC, K. Bacon, barrister, and
S. Davis, solicitor), and Laboratoires pharmaceutiques Trenker
SA, established in Brussels,
(represented by L. Defalque and
X. Leurquin), the Court, composed of: G.C. Rodríguez Iglesias,
President,
J.-P. Puissochet, M. Wathelet, R. Schintgen, C.W.
A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.
Jann (Rapporteur), V. Skouris,
O. Edward, A. La Pergola, P.
F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
A. Rosas,
Judges; S. Alber, Advocate General; M. Múgica
Arzamendi, Principal Administrator, for the Registrar, has given
a judgment on 24 July 2003, in which it:

(1) OJ C 273 of 23.9.2000.

1. Dismisses the appeal;

2. Orders the Commission of the European Communities to pay the
costs of these proceedings and those relating to the application for
interim relief.

JUDGMENT OF THE COURT

of 24 July 2003

(1) OJ C 70 of 22.3.2003.

in Case C-39/03 P: Commission of

the European

Communities v Artegodan GmbH and Others (1)

(Appeal — Directives 65/65/EEC and 75/319/EEC —
Medicinal products for human use — Anorectics: amfepra-
norpseudoephedrine,
fenproporex,
mone,
phentermine — Withdrawal of a marketing authorisation —
Competence of the Commission — Conditions for withdrawal)

clobenzorex,

(2003/C 226/02)

(Languages of the case: German, English and French)

In Case C-39/03 P, Commission of the European Communities,
(Agents: R. B. Wainwright and H. Støvlbæk, assisted by
B. Wägenbaur): Appeal against the judgment of the Court of
First Instance of the European Communities (Second Chamber,
Extended Composition) of 26 November 2002 in Joined Cases
T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00
and T-141/00 Artegodan and Others v Commission [2002]
ECR II-4945, seeking to have that judgment set aside, the
other parties to the proceedings being: Artegodan GmbH,
established in Lüchow (Germany), (represented by U. Doepner),
Bruno Farmaceutici SpA, established in Rome (Italy), Essential
Nutrition Ltd, established in Brough (United Kingdom), Hoechst

ORDER OF THE COURT

(First Chamber)

of 24 July 2003

in Case C-166/02 (Reference for a preliminary ruling from
the Tribunal Judicial da Comarca de Alcácer do Sal): Daniel
Fernando Messejana Viegas v Companhia de Seguros
Zurich SA, Mitsubishi Motors de Portugal SA (1)

(Article 104(3) of the Rules of Procedure — Answer which
may be clearly deduced from existing case-law — Second
Directive 84/5/EEC — Compulsory insurance against civil
liability in respect of motor vehicles — Types of civil
liability — Minimum amounts of cover)

(2003/C 226/03)

(Language of the case: Portuguese)

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

In Case C-166/02: Reference to the Court under Article 234 EC
by the Tribunal Judicial da Comarca de Alcácer do Sal (Portugal)

20.9.2003

EN

Official Journal of the European Union

C 226/3

Fernando Messejana Viegas

for a preliminary ruling in the proceedings pending before that
court between Daniel
and
Companhia de Seguros Zurich SA, Mitsubishi Motors de
Portugal SA, participant: CGU International Insurance plc —
Agência Geral em Portugal,
Instituto de Solidariedade e
Segurança Social (ISSS), on the interpretation of the Second
Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to
insurance against civil liability in respect of the use of motor
vehicles (OJ 1984 L 8, p. 17), the Court (First Chamber),
composed of: M. Wathelet, President of the Chamber, P. Jann
(Rapporteur) and A. Rosas, Judges; S. Alber, Advocate General;
R. Grass, Registrar, has made an order on 24 July 2003, the
operative part of which is as follows:

the Second Council Directive 84/5/EEC of
Article 1(2) of
the
30 December 1983 on the approximation of
Member States relating to insurance against civil liability in respect
of the use of motor vehicles precludes national laws which provide for a
number of types of civil liability applicable to road-traffic accidents
laying down, in respect of one of them, maximum amounts of com-
pensation that are lower than the minimum amounts of cover laid
down by that article.

the laws of

(1) OJ C 156 of 29.6.2002.

Action brought on 14 May 2003 by the Commission of the
European Communities against the Kingdom of Spain

(Case C-204/03)

(2003/C 226/04)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 14 May
2003 by the Commission of the European Communities, repre-
sented by Enrico Traversa, Legal Adviser, and Lidia Lozano
Palacios, of its Legal Service, acting as Agents.

The applicant claims that the Court should:

1. Declare that, by maintaining in force provisions which pro-
vide for a deductible proportion for taxable persons who
carry out only taxable transactions, and which lay down a
special rule which limits the right to deduct VAT on the
purchase of goods or services just because they were sub-
sidised, the Kingdom of Spain has failed to fulfil its obliga-
tions under Community law and, in particular, Articles 17
and 19 (2) and (5) of Sixth Council Directive 77/388/EEC (1)
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

2. Order the defendant to pay the costs.

Pleas in law and main arguments

The Commission charges the Kingdom of Spain with having
failed to fulfil its obligations under a number of provisions of
the Sixth Directive on two grounds:

1. Application of a deducible proportion to taxable persons
who carry out only transactions in respect of which value
added tax is deductible (Article 102(1) of the Spanish Law
on VAT).

According to the Commission,
the Spanish provision
broadens unlawfully the scope of the deductible propor-
tion in that it applies not only to taxable persons who
carry out transactions in respect of which value added tax
is deductible and transactions in respect of which value
added tax is not deductible (mixed taxable persons), but
also to those who carry out only taxable transactions (fully
taxable persons), just because they have received subsidies
which are not part of the basis of assessment of their
taxable transactions. According to Article 17(5) of the
the deductible proportion mechanism
Sixth Directive,
applies only where taxable persons carry out both
transactions which are taxable but exempt and taxable
transactions.

Furthermore, the inclusion of subsidies in the deductible
proportion as regards mixed taxable persons is an option
which the Member States have and constitutes an
exception to the general principle of deduction of the
amounts borne by way of VAT in respect of taxable
unexempted transactions. Therefore, that option may not
be exercised in order to treat unfavourably situations other
than those provided for by the directive, contrary to what
has been provided by the Community legislature. The
possible consequences for the neutrality of the tax arising
from the use by the Member States of the option provided
for under Article 19 of the directive cannot justify the
extension by the Spanish authorities of the restriction on
deduction to fully taxable persons, since the necessary
legal basis for it is lacking and it is a measure contrary to
the directive.

The Spanish provision at issue results in double taxation,
since the taxable person who receives a subsidy uses it as
part of the consideration for the purchase of goods or
services. Such purchases are taxed in accordance with the
Sixth Directive, so that the amount of the subsidy is
already subject to the relevant VAT. If that amount is then
included in the denominator for the deductible propor-
tion, resulting in the restriction of the right to deduct of