Case C-437/03: Action brought on 17 October 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2003-12-13
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, dentist, recognition of diplomas, right of establishment

C 304/16

EN

Official Journal of the European Union

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— if the goods cannot lawfully be placed on the market

The Commission claims that the Court should:

because they are stolen goods and/or contraband?

2.

3.

Is the answer to the first question different if the goods in
question are products subject to excise duty and in
particular manufactured tobaccos?

If no excise duty is charged on products which are subject
to excise duty, is it compatible with the provisions of the
Sixth VAT Directive to charge VAT in such a case?

4. May Member States supplement the categories of trans-
action subject to VAT if they lodge a notification, as
referred to in Article 27(2) or Article 27(5) of the Sixth
VAT Directive, of their intention to charge VAT at
national level in the event of theft of products subject to
excise duty from a tax warehouse, or is Article 2 of the
Sixth VAT Directive exhaustive?

5.

If a notification as referred to in Article 27(5) of the Sixth
VAT Directive relates only to the prepayment of VAT by
means of fiscal stamps, may a Member State supplement
the categories of transaction subject to VAT by, for
example, requiring the payment of VAT where products
subject to excise duty have been stolen from a tax
warehouse?

(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).

Action brought on 17 October 2003 by the Commission
of the European Communities against the Republic of
Austria

(Case C-437/03)

(2003/C 304/24)

1.

2.

declare that by granting Austrian dentists the possibility
in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on
Dentists) of engaging in their occupation under the title
‘Zahnarzt’ or ‘Zahnarzt (Dentist)’ and of making use of
the exception laid down in Article 19b of Council
Directive 78/686/EEC of 25 July 1978 (1), although the
dentists do not meet the minimum requirements under
Article 1 of Council Directive 78/687/EEC of 25 July
1978 (2) for falling within the provisions of Directives
78/686/EEC and 78/687/EEC, the Republic of Austria
has failed to fulfil its obligations under Articles 1 and 19b
of Directive 78/686/EEC and Article 1 of Directive 78/
687/EEC;

declare that by allowing, pursuant to Paragraphs 17
and 23 of the Ärztegesetz (Law on Doctors), Austrian
‘specialists in dental, oral and maxillo-facial surgery’ to
continue, in breach of Article 19b of Directive 78/686/
EEC,
to engage in their occupation under the title
‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ (special-
ists in dental, oral and maxillo-facial surgery) and by
those specialists not being placed on the same footing as
dentists inasmuch as specialists in dental, oral and
maxillo-facial surgery are entitled to engage in their
activities under the same conditions as holders of dip-
lomas, certificates or other evidence of formal qualifi-
cations in accordance with Annex A (dentists),
the
Republic of Austria has failed to fulfil its obligations
under Articles 1 and 19b of Directive 78/686/EEC;

3.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

1. D e n t i s t s

Austrian legislation has created a ‘new category of dentists’
which is not provided for in the directives. Although Austria
recognises that the situation is contrary to Community law, it
keeps it unchanged and continues to grant ‘dentists’ the right
to engage in their occupation under the professional title
‘Zahnarzt’ or ‘Zahnarzt (Dentist)’, and enables the Dentistenk-
ammer (professional association of dentists) to issue certificates
under Article 19b of Directive 78/686/EEC.

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
17 October 2003 by the Commission of
the European
Communities, represented by Dr Claudia Schmidt, Christina
Tufvesson and Andreas Manville, with an address for service
in Luxembourg.

2.

S p e c i a l i s t s i n d e n t a l , o r a l a n d m a x i l l o -
f a c i a l s u r g e r y

Austrian legislation distinguishes between, on the one hand,
‘doctors’, which includes ‘dentists’ and, on the other, ‘special-
ists’, which includes ‘specialists in dental, oral and maxillo-
facial surgery’. Persons from other Member States who fall

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Official Journal of the European Union

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within Directive 78/686/EEC are at a disadvantage in Austria
because they must use the professional title ‘dentist’ there,
while they are in direct competition with ‘specialists in dental,
oral and maxillo-facial surgery’. Furthermore, nationals of
other Member States staying in Austria must be able to rely on
an unambiguous title. Otherwise uncertainty is created which
could harm all patients from the Community. Since a ‘specialist
in dental, oral and maxillo-facial surgery’ is regarded under the
contested Law as a ‘specialist’ and a ‘dentist’ is regarded as a
‘doctor’, it is clear that a specialist falling within Article 19b of
Directive 78/686/EEC does not practice under the same
conditions as a ‘dentist’.

the Kingdom of the Netherlands has failed to fulfil its
obligations under Article 18(1) of Directive 79/409/EEC,
or has failed to fulfil its obligations under Article 23(1) of
Directive 92/43/EEC to comply with the directive;

— declare that Article 13(3) of the Natuurbeschermingswet
(law on the protection of nature) is contrary to Article 6(4)
of Directive 92/43/EEC;

— order the Kingdom of the Netherlands to pay the costs.

(1) OJ L 233, 24.8.1978, p. 1.
(2) OJ L 233, 24.8.1978, p. 10.

Pleas in law and main arguments

Although the Commission can in principle accept the measures
which the Netherlands has proposed in order to remedy the
failure found by the Commission in its formal notice of default,
the Commission must
time the
find that at
Netherlands is still in default since the proposed measures have
not yet been adopted or brought into force.

the present

Action brought on 15 October 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(1) OJ L 103 of 25 April 1979, p. 1.
(2) OJ L 206 of 22 July 1992, p. 7.

(Case C-441/03)

(2003/C 304/25)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 October 2003 by the Commission of
the European
Communities, represented by M. van Beek, as agent.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 17 October
2003 in the case of Götz Leffler against Berlin Chemie
AG, a company incorporated under German law

The applicant claims that the Court should:

— declare that by failing to bring into force the laws,
regulations and administrative provisions in order to:

(Case C-443)

(2003/C 304/26)

— fulfil the obligations of the Kingdom of the Nether-
lands under Article 4(1) and (2) of the Council
Directive of 2 April 1979 on the conservation of
wild birds (79/409/EEC) (1), or in any event by failing
to inform the Commission of those provisions, and

— fulfil the obligations of the Kingdom of the Nether-
in conjunction with
lands under Article 6(1),
Article 2(1) and Article 1(a),
(e) and (i), and
Articles 6(2), (3) and (4), 7, 11, 14(1) and (2), and
15 of Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna
and flora, (2) or in any event by failing to inform the
Commission thereof,

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 17 Octo-
ber 2003, received at the Court Registry on 20 October 2003,
for a preliminary ruling in the case of Götz Leffler against
Berlin Chemie AG, a company incorporated under German
law on the following questions:

1. Must Article 8(1) of the Regulation (1) be construed as
meaning that, in the event of refusal by an addressee to
accept a document on the ground of failure to comply
with the language requirement laid down in Article 8(1),
it is possible for the sender to rectify that failure?