Case C-415/03: Action brought on 3 October 2003 by the Commission of the European Communities against the Hellenic Republic
Date: 2003-11-29
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, aid for restructuring, redemption

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.

29.11.2003

EN

Official Journal of the European Union

C 289/15

Furthermore, in the present instance there are no grounds for
allowing an exemption from the obligation to recover the aid.

ments with Romania, Poland and the Ukraine on trans-
port by inland waterway, and refusing to revoke them;

— declare that

the Federal Republic of Germany has
breached its obligations under Regulation (EC) No 1356/
96 (2), as the individual bilateral agreements on transport
by inland waterway with Romania, Poland, the Ukraine,
the Republic of Czechoslovakia and Hungary are incom-
patible with Regulation (EC) No 1356/96 and it has
refused to revoke them;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

— The Federal Republic of Germany has usurped the
exclusive competence of the Community to conclude
international agreements within the meaning of the
‘AETR’ case-law by negotiating, concluding, ratifying and
bringing into force individual bilateral agreements with
Romania, Poland and the Ukraine on transport by inland
waterway which have an impact on the Community
provisions which the Community adopted in Regulation
(EEC) No 3921/91. That regulation lays down the con-
ditions under which non-resident carriers may transport
goods or passengers by inland waterway within a Member
State. Those conditions were widened in stages. The
balance thereby created is disturbed by Article 6 of the
agreements concluded with Poland, Romania and the
Ukraine whereby operators resident in third countries
have access to cabotage in Germany.

— The Federal Republic of Germany has failed to fulfil
its obligations under Article 10 EC by negotiating,
concluding, ratifying and bringing into force the con-
tested bilateral agreements after the Council had granted
the Commission authority to negotiate and the German
Government could not have been unaware that nego-
tiations for a multilateral agreement were in progress.

— The bilateral agreements concluded by the Federal Repub-
lic of Germany are incompatible with Council Regulation
(EC) No 1356/96 on common rules applicable to the
transport of goods or passengers by inland waterway
between Member States with a view to establishing
freedom to provide such transport services. The Polish,
Ukrainian, Romanian, Czech, Slovak and Hungarian
barge owners and inland waterway transport undertak-
ings, which may be allowed to carry out
transport
between Germany and the other Member States under
the contested agreements, do not satisfy the conditions
laid down in that Regulation.

(1) OJ 1991 L 373, p. 1.
(2) OJ 1996 L 175, p. 7.

Reference for a preliminary ruling by the Giudice di Pace
di Milazzo by order of that Court of 18 April 2003 in the
case of Provvidenza Regio against AXA Assicurazioni

(Case C-425/03)

(2003/C 289/29)

Reference has been made to the Court of Justice of the
European Communities by order of the Giudice di Pace di
Milazzo (Milazzo Magistrates’ Court) of 18 April 2003,
received at the Court Registry on 6 October 2003, for a
preliminary ruling in the case of Provvidenza Regio against
AXA Assicurazioni on the following question:

The questions of unconstitutionality raised in the present
proceedings concern Article 1 of Decree Law No 18/03, which
removes from equitable assessment cases falling within the
jurisdiction of the Giudice di Pace concerning standard form
contracts the value of which does not exceed EUR 1 100.

Action brought on 10 October 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-433/03)

(2003/C 289/30)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 10 October 2003 by the Commission of the European
Communities, represented by Claudia Schmidt and Wils
Wouter of its Legal Service, and Andreas Manville, Assistant in
its Legal Service, with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that

the Federal Republic of Germany has
breached its obligations under Article 10 EC and Regu-
lation (EEC) No 3921/91 (1) by negotiating, concluding,
ratifying and implementing individual bilateral agree-