Case C-432/03: Action brought on 10 October 2003 by Commission of the European Communities against Portuguese Republic
Date: 2003-12-13
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, approval, plastics

C 304/14

EN

Official Journal of the European Union

13.12.2003

Action brought on 30 September 2003 by the Italian
Republic against the Commission of the European Com-
munities

made by the Member State as final beneficiary subject to
the only requirement that the expenditure should be in
fact incurred by the final beneficiary itself.

(Case C-431/03)

(2003/C 304/20)

(1) OJ 1999 L 161, p. 1.
(2) OJ 2000 L 193, p. 39.

(b)

Inadequate and contradictory statement of reasons.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 September 2003 by the Italian Republic
represented by Ivo Maria Braguglia, acting as Agent, and
Antonio Cingolo, Avvocato dello Stato.

The applicant claims that the Court should:

— order the joinder of the present case with the related
Cases C-138/03 and C-324/03; annul Memorandum
No 26777a of the European Commissioner, Mr Barnier,
of 29 July 2003 in so far as it excludes from financing
the advances paid in relation to State aid granted by the
Member States after 19 February 2003; annul all related
and preceding acts;

— order the Commission of the European Communities to

pay all the costs.

Pleas in law and main arguments

The applicant argues that the contested measure should be
annulled on the following grounds:

(a)

infringement of Article 32 of Regulation (EC) No 1260/
1999 (1) and of Rule 1(1) and (2)
in the Annex to
Commission Regulation (EEC) No 1685/2000 (2).

The contested measure clearly infringed the abovemen-
tioned regulations.

None of the provisions contained in the abovementioned
regulations states that the activities actually carried out
and charged to financing are significant in terms of the
eligibility of the payment made by the final recipients of
the funding under State aid.

Rather on the contrary, the scheme laid down in those
regulations, so far as concerns the State aid within the
meaning of Article 87 EC, considers eligible payment

Action brought on 10 October 2003 by Commission of
the European Communities against Portuguese Republic

(Case C-432/03)

(2003/C 304/21)

An action against
the Portuguese Republic was brought
before the Court of Justice of the European Communities on
10 October 2003 by the Commission of
the European
Communities, represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that:

— by making tubes of polyethylene imported from
other Member States subject to an approval pro-
cedure, pursuant to Article 17 of Decree-Law No 38/
382 of 7 August 1951, without taking account of
approval certificates issued by those States,

and

— by omitting to inform the Commission of that

measure,

the Portuguese Republic has failed to fulfil its obligations
under Articles 28 EC and 30 EC, and also under Articles 1
and 4(2) of Decision No 3052/95/EC of the European
Parliament and of the Council (1) of 13 December 1995
establishing a procedure for the exchange of information
on national measures derogating from the principle of
the free movement of goods within the Community;

2. Order the Portuguese Republic to pay the costs.

13.12.2003

EN

Official Journal of the European Union

C 304/15

Pleas in law and main arguments

In so far as it makes the use of construction products including
tubes of polyethylene imported from other Member States
subject to an approval procedure, Article 17 of Decree-Law
No 38/382 constitutes a measure having effect equivalent to a
quantitative restriction on imports prohibited by Article 28
EC. The Portuguese authorities have not explained why tubes
of polyethylene should constitute a danger to human life or
health and have not put forward any other overriding reasons.

The authorities of the Member States are not entitled to
demand, where there is no need, technical or chemical analyses
or laboratory tests when those analyses or tests have already
been performed in another Member State and the results are
available to those authorities or can, at their request, be made
available.

The Portuguese authorities are obliged, in accordance with the
Court of Justice’s case-law, to take into account certificates
issued by certification bodies in other Member States which,
although they are not members of the European Association
for Technical Approval in Construction, are recognised to be
suitable bodies for the purposes of certifying the products in
question. In this instance the Portuguese authorities have failed
to do so.

(1) OJ L 321 of 30 December 1995, p. 1.

— there is no possibility of choosing to include capital
goods, or goods or a service treated as such, wholly in
the assets of an undertaking where the acquirer uses those
goods or that service both within the undertaking and
outside it (in particular for private purposes);

— there is, related to this, also no possibility of deducting
directly and wholly the tax charged on the acquisition of
those goods or that service; and

— there is no provision for the charging of VAT as intended

in Article 6(2)(a) of the Sixth Directive,

compatible with the Sixth Directive — in particular
Article 17(1), (2) and (6) and Article 6(2) thereof?

(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).

Reference for a preliminary ruling by the hof van beroep
te Antwerpen by interlocutory judgment of that Court of
7 October 2003 in the proceedings between 1. British
American Tobacco International Limited, 2. N.V. Newman
Shipping & Agency Company, and the Belgian State,
Ministry of Finance

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 10 October
2003 in the appeal in cassation brought by P. Charles and
T.S. Charles-Tijmens against the Inspector of Taxes

(Case C-435/03)

(2003/C 304/23)

(Case C-434/03)

(2003/C 304/22)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 10 Octo-
ber 2003, received at the Court Registry on 13 October 2003,
for a preliminary ruling in the appeal in cassation brought by
P. Charles and T.S. Charles-Tijmens against the Inspector of
Taxes on the following question:

Reference has been made to the Court of Justice of the
European Communities by interlocutory judgment of the hof
van beroep te Antwerpen (Court of Appeal, Antwerp) of
7 October 2003, received at the Court Registry on 14 October
2003, for a preliminary ruling in the proceedings between
1. British American Tobacco International Limited, 2. N.V.
Newman Shipping & Agency Company, and the Belgian State,
Ministry of Finance on the following questions:

1.

Can there be a ‘supply of goods’ within the meaning of
the Sixth VAT Directive (1), with the consequence that
VAT can be charged:

— in the absence of any consideration?

Is a statutory scheme such as that set out in section 3.4.1
above, which was already in existence before the Sixth
Directive (1) was adopted and under which:

— in the absence of transfer of the right to dispose

freely of the goods as owner?