Judgment of the Court of 30 September 2003 in Case C-167/01 (Reference for a preliminary ruling from the Kantongerecht te Amsterdam): Kamer van Koophandel en Fabrieken voor Amsterdam, v Inspire Art Ltd (Articles 43 EC, 46 EC and 48 EC — Company formed in one Member State and carrying on its activities in another Member State — Application of the company law of the Member State of establishment intended to protect the interests of others)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: Liberalism, Netherlands, incorporation, interpretation of the law, right of establishment, subsidiary

C 275/10

EN

Official Journal of the European Union

15.11.2003

JUDGMENT OF THE COURT

(Fifth Chamber)

of 2 October 2003

in Case C-147/01 (Reference for a preliminary ruling
from the Verwaltungsgerichtshof): Weber’s Wine World
Handels-GmbH, Ernestine Rathgeber, Karl Schlosser,
Beta-Leasing GmbH v Abgabenberufungskommission
Wien (1)

(Indirect taxation — Duty on sales of alcoholic beverages —
Incompatibility with Community law — Recovery of duty)

national court to ascertain, on the basis of a comprehensive
assessment of national law, whether it is actually the case that
only claimants who bring proceedings based on domestic
constitutional law may rely on the ‘Anlaßfallwirkung’ and that
the rules governing repayment of charges held to be incompatible
with domestic constitutional law are more favourable than those
applicable to actions relating to taxes held to be contrary to
Community law.

4.

The principle of effectiveness precludes national legislation or a
national administrative practice which makes the exercise of the
rights conferred by the Community legal order impossible in
practice or excessively difficult by establishing a presumption of
unjust enrichment on the sole ground that the duty was passed
on to third parties.

(2003/C 275/16)

(Language of the case: German)

(1) OJ C 173 of 16.6.2001.

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

In Case C-147/01: Reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Austria)
for a preliminary
ruling in the proceedings pending before that court between
Weber’s Wine World Handels-GmbH, Ernestine Rathgeber,
Karl Schlosser, Beta-Leasing GmbH and Abgabenberufungs-
kommission Wien, on the interpretation of Article 5 of the EC
Treaty (now Article 10 EC) and paragraph 3 of the operative
part of the judgment of the Court in Case C-437/97 EKW and
Wein & Co [2000] ECR I-1157, the Court (Fifth Chamber),
(Rapporteur), President of the
composed of: M. Wathelet
Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and
S. von Bahr, Judges; F.G. Jacobs, Advocate General; M.-F.
Contet, Principal Administrator, for the Registrar, has given a
judgment on 2 October 2003, in which it has ruled:

1.

2.

3.

The adoption by a Member State of rules, such as the Wiener
Abgabenordnung, fixing more restrictive procedural rules on
recovery of sums levied but not due, in order to forestall the
possible effects of a judgment of
the Court holding that
Community law precludes the maintenance of a national duty,
is contrary to Community law and, more particularly,
to
Article 5 of the EC Treaty (now Article 10 EC) only in so far
as it is aimed specifically at that duty, a point which falls to be
determined by the national court.

The rules of Community law on the recovery of sums levied but
not due are to be interpreted as meaning that they preclude
national rules which refuse — a point which falls to be
determined by the national court — repayment of a charge
incompatible with Community law on the sole ground that the
charge was passed on to third parties, without requiring that
the degree of unjust enrichment that repayment of the charge
would entail for the taxable person be established.

The principle of equivalence precludes national rules which lay
down less favourable procedural rules for claims for repayment
of a charge which has been levied though not due from the
aspect of Community law than those applicable to similar
actions based on certain provisions of domestic law. It is for the

JUDGMENT OF THE COURT

of 30 September 2003

in Case C-167/01 (Reference for a preliminary ruling
from the Kantongerecht te Amsterdam): Kamer van
Koophandel en Fabrieken voor Amsterdam, v Inspire Art
Ltd (1)

(Articles 43 EC, 46 EC and 48 EC — Company formed in
one Member State and carrying on its activities in another
Member State — Application of the company law of the
Member State of establishment intended to protect the
interests of others)

(2003/C 275/17)

(Language of the case: Dutch)

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

In Case C-167/01: Reference to the Court under Article 234
EC by the Kantongerecht te Amsterdam (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between Kamer van Koophandel en Fabrieken voor
Amsterdam, and Inspire Art Ltd, on the interpretation of
Articles 43 EC, 46 EC and 48 EC, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
(Rapporteur), R. Schintgen and C.W.A. Timmermans (Presi-
dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; S. Alber,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, has given a judgment on 30 September 2003, in
which it has ruled:

15.11.2003

EN

Official Journal of the European Union

C 275/11

1.

2.

It is contrary to Article 2 of the Eleventh Council Directive
89/666/EEC of 21 December 1989 concerning disclosure
requirements in respect of branches opened in a Member State
by certain types of company governed by the law of another
State for national legislation such as the Wet op de Formeel
Buitenlandse Vennootschappen (Law on Formally Foreign
Companies) of 17 December 1997 to impose on the branch of
a company formed in accordance with the laws of another
Member State disclosure obligations not provided for by that
directive.

It is contrary to Articles 43 EC and 48 EC for national
the Wet op de Formeel Buitenlandse
legislation such as
Vennootschappen to impose on the exercise of
freedom of
secondary establishment in that State by a company formed in
accordance with the law of another Member State certain
conditions provided for in domestic company law in respect of
company formation relating to minimum capital and directors’
liability. The reasons for which the company was formed in that
other State, and the fact that it carries on its activities exclusively
or almost exclusively in the Member State of establishment, do
not deprive it of the right to invoke the freedom of establishment
guaranteed by the Treaty, save where the existence of an abuse
is established on a case-by-case basis.

(1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 2 October 2003

in Joined Cases C-172/01 P, C-175/01 P, C-176/01 P
and C-180/01 P: International Power plc, British Coal
Corporation, PowerGen (UK) plc, Commission of the
European Communities v National Association of
Licensed Opencast Operators (NALOO) (1)

(Appeal — ECSC Treaty — Rejection of a complaint alleging
discriminatory pricing and unreasonable royalties — Powers
of the Commission)

(2003/C 275/18)

(Language of the case: English)

In Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and
C-180/01 P, International Power plc, formerly National Power

Instance of

plc, established in London (United Kingdom) (represented by
D. Anderson, QC, and M. Chamberlain, barrister, instructed by
S. Ramsay, solicitor), British Coal Corporation, established in
London (represented by D. Vaughan and D. Lloyd Jones, QC,
instructed by C. Mehta, solicitor), PowerGen (UK) plc, formerly
PowerGen plc, established in London (K.P.E. Lasok, QC,
instructed by P. Lomas, solicitor) and Commission of the
European Communities (Agent: A. Whelan, assisted by
J.E. Flynn, barrister): Appeals against the judgment of the Court
of First
the European Communities (Second
Chamber) of 7 February 2001 in Case T-89/98 NALOO v
Commission [2001] ECR II-515, seeking to have that judgment
set aside, the other party to the proceedings being: National
Association of Licensed Opencast Operators (NALOO), estab-
lished in Newcastle upon Tyne (United Kingdom) represented
by M. Hoskins, barrister, instructed by A. Dowie, solicitor,
with an address for service in Luxembourg, the Court (Fifth
Chamber), composed of: M. Wathelet, President of the Chamb-
er, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and
A. Rosas,
Judges; S. Alber, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, has given a judgment
on 2 October 2003, in which it:

1.

Sets aside the judgment of
the Court of First Instance of
7 February 2001 in Case T-89/98 NALOO v Commission in
so far as it annuls:

— the part of Decision IV/E-3/NALOO of 27 April 1998
in which the Commission of the European Communities
the ECSC Treaty was not
held that Article 65 of
applicable to the setting of royalties for coal extraction;

— the part of that decision in which the Commission of the
European Communities rejected the complaint relating to
the level of the royalties charged for coal extraction before
1 April 1990.

2.

For the rest, dismisses the appeals.

3. Dismisses the application of

the National Association of

Licensed Opencast Operators (NALOO) in so far as it seeks:

— annulment of the part of Decision IV/E-3/NALOO in
which the Commission of the European Communities held
that Article 65 of the ECSC Treaty was not applicable to
the setting of royalties for coal extraction.

— annulment of the part of that decision in which the
Commission of the European Communities rejected the
complaint relating to the level of the royalties charged for
coal extraction before 1 April 1990.