Case C-412/03: Reference for a preliminary ruling by the Regeringsrätten by order of that Court of 29 September 2003 in the case of Hotel Scandic Gåsabäck AB against Riksskatteverket
Date: 2003-11-29
Institutions: Court of Justice
Subjects: VAT, delivery, distributive trades, interpretation of the law, provision of services

C 289/14

EN

Official Journal of the European Union

29.11.2003

Reference for a preliminary ruling by the Regeringsrätten
by order of that Court of 29 September 2003 in the case
of Hotel Scandic Gåsabäck AB against Riksskatteverket

Action brought on 3 October 2003 by the Commission of
the European Communities against the Hellenic Republic

(Case C-412/03)

(2003/C 289/27)

Reference has been made to the Court of Justice of the
the Regeringsrätten
European Communities by order of
(Supreme Administrative Court) of 29 September 2003,
received at the Court Registry on 3 October 2003, for a
preliminary ruling in the case of Hotel Scandic Gåsabäck AB
against Riksskatteverket on the following questions:

1.

2.

In the event that the Regeringsrätten finds, when the case
is decided, that the company’s supplies are supplies of
goods, are Article 2 and Article 5(6) of the Sixth Value
Added Tax Directive (1) to be interpreted as precluding
provisions in the legislation of a Member State under
which withdrawal of goods means that a taxable person
transfers goods to a third party for a consideration less
than the purchase value of the goods or of similar goods
or, if no such value is available, the cost price.

In the event that the Regeringsrätten finds, when the
case is decided, that the company’s supplies are food
dispensing services, are Article 2 and Article 6(2)(b) of
the Sixth Value Added Tax Directive to be interpreted as
precluding provisions in the legislation of a Member State
under which withdrawal of goods means that a taxable
person performs, arranges performance or in some other
way provides a service for himself or his staff for private
purposes or for other non-commercial purposes, where
the service is provided for a consideration less than the
cost of performing the service.

(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 13.6.1977, p. 1).

(Case C-415/03)

(2003/C 289/28)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 3 Octo-
ber 2003 by the Commission of the European Communities,
represented by D. Triantafillou and J.L. Buendia Sierra, of its
Legal Service.

The applicant claims that the Court should:

— declare that, by failing to take, within the time-limit laid
down, all the measures necessary for repayment of the
aid found to be unlawful and incompatible with the
common market (except the IKA (Social Security Insti-
tution) contributions) in accordance with Article 3 of the
Commission Decision of 11 December 2002 on aid
granted by Greece to Olympic Airways (notified under
document number C(2002) 4831) or, in any event, by
failing to inform the Commission of the measures taken
pursuant to Article 4, the Hellenic Republic has failed to
fulfil its obligations under Articles 3 and 4 of that decision
and the EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission decision obliges Greece to take all the
necessary measures so as to recover from Olympic Airways
both the sum of EUR 41 000 000 (which relates to the
restructuring aid set out in Article 1 of the decision) and the
aid referred to in Article 2 of the decision, and to inform the
Commission within two months of the measures adopted.

That period for compliance with the decision expired on
13 February 2003.

In accordance with settled case-law, the only justification
which may be put forward by a Member State in the context
of the procedure under Article 88(2) EC is that it is absolutely
impossible to implement the decision properly. However, on
expiry of the abovementioned time-limit, the Greek authorities
refused to implement the decision, invoking other grounds.