Judgment of the Court (Fifth Chamber) of 23 October 2003 in Case C-109/02: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Sixth VAT Directive — National legislation providing for a reduced rate for musical ensembles and soloists provided the latter organise the concert themselves)
Date: 2003-12-13
Institutions: Court of Justice
Subjects: European Commission, Germany, VAT, action for failure to fulfil an obligation, approximation of laws, artistic profession, performing arts, provision of services, tax exemption

13.12.2003

EN

Official Journal of the European Union

C 304/7

3.

Protocol No 2 concerning Article 119 of the Treaty establishing
the European Community and the Protocol
concerning
Article 141 EC annexed to the EC Treaty are to be interpreted
as precluding the application of Article 119 of the Treaty and
Article 141(1) and (2) EC respectively to benefits provided
under an occupational social security scheme payable in respect
of periods of employment prior to 17 May 1990, subject to the
exception for workers or those claiming under them who have
before that date initiated legal proceedings or
raised an
equivalent claim under the applicable national law.

(1) OJ C 109 of 4.5.2002.

1. Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of
24 September 1990 on nutrition labelling for foodstuffs must
be interpreted as meaning that, first, the value of a nutrient
such as vitamin C which is indicated on a foodstuff following
an analysis of the foodstuff carried out by the manufacturer
may correspond to the value of that nutrient in the foodstuff in
question at the end of its minimum conservation period and,
second, that the determination of the permissible differences
between the value stated and the value established in the course
of an official check is, in the present state of Community law,
within the competence of the Member States.

2.

Consideration of the third question has not disclosed any factor
of such a kind as to affect the validity of Directive 90/496.

(1) OJ C 109 of 4.5.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 23 October 2003

in Case C-40/02 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster-
reich): Margareta Scherndl v Bezirkshauptmannschaft
Korneuburg (1)

(Directive 90/496/EEC — Nutrition labelling of foodstuffs
— Vitamin content — Declared value — Average value
— Reference date — Permissible differences between the
declared value and the value established in the course of an
official check — Proportionality — Legal certainty)

(2003/C 304/09)

(Language of the case: German)

JUDGMENT OF THE COURT

(Fifth Chamber)

of 23 October 2003

in Case C-109/02: Commission of the European Communi-
ties v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations — Sixth
VAT Directive — National
legislation providing for a
reduced rate for musical ensembles and soloists provided the
latter organise the concert themselves)

(2003/C 304/10)

(Language of the case: German)

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

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

In Case C-40/02: Reference to the Court under Article 234 EC
by the Unabhängiger Verwaltungssenat im Land Niederöster-
reich (Austria) for a preliminary ruling in the proceedings
pending before that court between Margareta Scherndl and
Bezirkshauptmannschaft Korneuburg, on the interpretation
and validity of Articles 1(4)(k) and 6(8) of Council Directive
90/496/EEC of 24 September 1990 on nutrition labelling for
foodstuffs (OJ 1990 L 276, p. 40), the Court (Sixth Chamber),
J.-P. Puissochet, President of the Chamber,
composed of:
R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,
Registrar, has given a judgment on 23 October 2003, in which
it has ruled:

In Case C-109/02, Commission of the European Communities
(Agents: E. Traversa and G. Wilms) v Federal Republic of
Germany (Agents: W.-D. Plessing and M. Lumma): Application
for a declaration that, by applying a reduced rate of value
added tax to services provided directly to the public by musical
ensembles or for a concert organiser and to services provided
directly to the public by soloists, but applying the standard
rate of that tax to the services of soloists working for an
organiser, the Federal Republic of Germany has failed to fulfil
its obligations under the third subparagraph of Article 12(3)(a)
of the Sixth Council Directive 77/388/EEC of 17 May 1977
on the harmonisation of the laws of the Member States relating

C 304/8

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Official Journal of the European Union

13.12.2003

to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145, p. 1), as amended
by Council Directive 1999/49/EC of 25 May 1999 amending,
with regard to the level of the standard rate, Directive 77/388
(OJ 1999 L 139, p. 27), the Court (Fifth Chamber), composed
of: D.A.O. Edward, acting as President of the Fifth Chamber,
A. La Pergola and P. Jann (Rapporteur), Judges; J. Mischo,
Advocate General; R. Grass, Registrar, has given a judgment
on 23 October 2003, in which it:

1. Declares that, by applying a reduced rate of value added tax to
services provided directly to the public by musical ensembles or
for a concert organiser and to services provided directly to the
public by soloists, but applying the standard rate of that tax to
the services of soloists working for an organiser, the Federal
Republic of Germany has failed to fulfil its obligations under
the third subparagraph of Article 12(3)(a) of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment, as amended by Council Directive 1999/49/EC of
25 May 1999 amending, with regard to the level of the
standard rate, Directive 77/388;

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 131 of 1.6.2002.

Administration des douanes et droits indirects and Rioglass SA,
Transremar SL on the interpretation of Article 28 EC, the
Court (Sixth Chamber), composed of: J.-P. Puissochet, President
the Chamber, C. Gulmann, V. Skouris (Rapporteur),
of
J. Mischo,
F. Macken and J.N. Cunha Rodrigues,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, has given a judgment on 23 October 2003, in
which it has ruled:

Judges;

Article 28 EC is to be interpreted as precluding the implementation,
pursuant to a legislative measure of a Member State concerning
intellectual property, of procedures for detention by the customs
authorities of goods lawfully manufactured in another Member State
and intended, following their transit through the territory of the first
Member State, to be placed on the market in a non-member country.

(1) OJ C 131 of 1.6.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 23 October 2003

JUDGMENT OF THE COURT

(Sixth Chamber)

of 23 October 2003

in Case C-115/02 (Reference for a preliminary ruling from
the Cour de cassation): Administration des douanes et
droits indirects v Rioglass SA, Transremar SL (1)

(Free movement of goods — Measures having equivalent
effect — Procedures for detention under customs control —
Goods in transit intended for the market of a non-member
country — Spare parts for motor cars)

in Case C-154/02 (Reference for a preliminary ruling from
the Hässleholms tingsrätt): Jan Nilsson (1)

(International trade in endangered species of wild fauna
and flora — CITES — Regulation (EC) No 338/97 —
Articles 2(w) and 8(3) — Notion of ‘worked specimen’ —
Stuffed animal — Concept of ‘specimen acquired more than
50 years previously’ — Manner of acquisition — Exemption
— Regulation (EC) No 1808/2001 — Articles 29 and 32)

(2003/C 304/12)

(Language of the case: Swedish)

(2003/C 304/11)

(Language of the case: French)

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

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

In Case C-115/02: Reference to the Court under Article 234
EC by the Cour de cassation (France)
for a preliminary
ruling in the proceedings pending before that court between

In Case C-154/02: Reference to the Court under Article 234
EC by Hässleholms tingsrätt (Sweden) for a preliminary ruling
in the criminal proceedings pending before that court against
Jan Nilsson, on the interpretation of Council Regulation (EC)
No 338/97 of 9 December 1996 on the protection of species
of wild fauna and flora by regulating trade therein (OJ 1997
L 61, p. 1), as amended by Commission Regulation (EC)