Judgment of the Court (Fifth Chamber) of 27 November 2003 in Case C-497/01 (Reference for a preliminary ruling from the Tribunal d'arrondissement de Luxembourg): Zita Modes Sàrl v Administration de l'enregistrement et des domaines (Sixth VAT Directive — Article 5(8) — Transfer of a totality of assets — Continuation by the transferee in the same branch of business as the transferor — Legal authorisation to pursue the activity)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, interpretation of the law, provision of services, tax harmonisation

24.1.2004

EN

Official Journal of the European Union

C 21/5

Directive 90/219, and by failing to transpose the provisions of
that directive in respect of certain contained use by the Ministry
of Defence, the French Republic has failed to fulfil its obligations
under that directive;

2. Dismisses the remainder of the action;

3. Orders each party to bear its own costs.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 4 December 2003

in Case C-448/01 (Reference for a preliminary ruling from
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v
Republik Österreich, third parties: Stadtwerke Klagenfurt
AG and Kärntner Elektrizitäts-AG (1)

(Directive 93/36/EEC — Public supply contracts — Concept
of the most economically advantageous tender — Award
criterion giving preference to electricity produced from
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —
Possibility of annulment only in the case of material influ-
ence on the outcome of the tender procedure — Illegality of
an award criterion — Obligation to cancel the invitation to
tender)

of the assessment of the most economically advantageous tender
for a contract for the supply of electricity, an award criterion
with a weighting of 45 % which requires that the electricity
supplied be produced from renewable energy sources. The fact
that that criterion does not necessarily serve to achieve the
objective pursued is irrelevant in that regard.

On the other hand, that legislation does preclude such a
criterion where

— It is not accompanied by requirements which permit the
accuracy of the information contained in the tenders to be
effectively verified,

— it requires tenderers to state how much electricity they can
supply from renewable energy sources to a non-defined
group of consumers, and allocates the maximum number
of points to whichever tenderer states the highest amount,
where the supply volume is taken into account only to the
extent that it exceeds the volume of consumption expected
in the context of the procurement.

It is for the national court to determine whether, despite the
contracting authority’s failure to stipulate a specific supply
period, the award criterion was sufficiently clearly formulated to
satisfy the requirements of equal treatment and transparency of
procedures for awarding public contracts.

2.

The Community legislation on public procurement requires the
contracting authority to cancel an invitation to tender if it
transpires in review proceedings under Article 1 of Directive
89/665 that a decision relating to one of the award criteria
laid down by that authority is unlawful and it is therefore
annulled by the review body.

(2004/C 21/09)

(Language of the case: German)

(1) OJ C 84 of 6.4.2002.

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

In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on
the interpretation of Article 26 of Council Directive 93/36/
EEC of 14 June 1993 coordinating procedures for the award
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
21 December 1989 on the coordination of the laws, regu-
lations and administrative provisions relating to the application
of review procedures to the award of public supply and public
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 4 December 2003, in which it has ruled:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 November 2003

in Case C-497/01 (Reference for a preliminary ruling from
the Tribunal d’arrondissement de Luxembourg): Zita
Modes Sàrl v Administration de l’enregistrement et des
domaines (1)

(Sixth VAT Directive — Article 5(8) — Transfer of a
totality of assets — Continuation by the transferee in
the same branch of business as the transferor — Legal
authorisation to pursue the activity)

(2004/C 21/10)

(Language of the case: French)

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

1.

The Community legislation on public procurement does not
preclude a contracting authority from applying, in the context

In Case C-497/01: Reference to the Court under Article 234
EC by the Tribunal d’arrondissement de Luxembourg (Luxem-

C 21/6

EN

Official Journal of the European Union

24.1.2004

bourg) for a preliminary ruling in the proceedings pending
before that court between Zita Modes Sàrl and Administration
de l’enregistrement et des domaines, on the interpretation of
Article 5(8) of 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 assessment (OJ 1977 L 145, p. 1), as
amended by Council Directive 95/7/EC of 10 April 1995
amending Directive 77/388/EEC and introducing new simplifi-
cation measures with regard to value added tax — scope of
certain
for
implementing them (OJ 1995 L 102, p. 18), the Court (Fifth
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, D. A. O. Edward and S. von Bahr
(Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass,
Registrar, has given a judgment on 27 November 2003, in
which it has ruled:

arrangements

exemptions

practical

and

1. Article 5(8) of 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 assessment, as amended by Council
Directive 95/7/EC of 10 April 1995 amending Directive 77/
388/EEC and introducing new simplification measures with
regard to value added tax — scope of certain exemptions
and practical arrangements for implementing them, must be
interpreted as meaning that when a Member State has made
use of the option in the first sentence of that paragraph to
consider that for the purposes of value added tax no supply of
goods has taken place in the event of a transfer of a totality of
assets, that no-supply rule applies — without prejudice to use
of the possibility of restricting its application in the circum-
stances laid down in the second sentence of the same paragraph
— to any transfer of a business or an independent part of an
including tangible elements and, as the case
undertaking,
may be,
intangible elements which, together, constitute an
undertaking or a part of an undertaking capable of carrying on
an independent economic activity. The transferee must however
intend to operate the business or the part of the undertaking
transferred and not simply to immediately liquidate the activity
concerned and sell the stock, if any.

2. When a Member State has made use of the option in the first
sentence of Article 5(8) of Sixth Directive 77/388, as amended
by Directive 95/7, to consider that for the purposes of value
added tax no supply of goods has taken place in the event of a
transfer of a totality of assets, the restriction by a Member State
of the application of that no-supply rule to transfers of a totality
of assets where the transferee holds the authorisation for pursuit
of the economic activity which that totality enables to be carried
on infringes that provision.

(1) OJ C 44 of 16.2.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 4 December 2003

in Case C-92/02 (Reference for a preliminary ruling from
the Arbeidsrechtbank van het Arrondissement Tonge-
ren): Nina Kristiansen v Rijksdienst voor Arbeidsvoor-
ziening (1)

(Social security — National system of unemployment ben-
efits laying down a rule against overlapping of benefits as
regards certain income — Unemployment benefits for former
members of the temporary staff of the European Communi-
ties — Freedom of movement for workers — National
scheme of unemployment insurance — Classification of post-
graduate occupation — Occupation of trainee fellowship
student — Different classification in other Member States
of the EEA — Discrimination)

(2004/C 21/11)

(Language of the case: Dutch)

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

In Case C-92/02, Reference to the Court under Article 234 EC
by the Arbeidsrechtbank van het Arrondissement Tongeren
(Belgium) for a preliminary ruling in the proceedings pending
before that court between Nina Kristiansen and Rijksdienst
voor Arbeisdvoorziening, on the interpretation of Regulation
(EEC) No 1408/71 of the Council of 14 June 1971 on the
application of social security schemes to employed persons, to
their families
self-employed persons and to members of
moving within the Community, as amended and updated by
Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
1997 L 28, p. 1), and of Regulation (EEC) No 1612/68 of the
Council of 15 October 1968 on freedom of movement for
workers within the Community (OJ, English Special Edition
1968 (II), p. 475), the Court (Fifth Chamber), composed of:
C. W. A. Timmermans, acting for the President of the Fifth
Chamber, D. A. O. Edward and A. La Pergola (Rapporteur),
Judges; S. Alber, Advocate General; R. Grass, Registrar, has
given a judgment on 4 December 2003, in which it has ruled:

1.

The second subparagraph of Article 28a(1) of the Conditions
of Employment of Other Servants of the European Communities
means that the relationship between the Community system of
unemployment benefits and those of the Member States is a
complementary one, which cannot be disregarded by a Member
State in the application of its system of unemployment benefits
and, specifically, of a rule against the overlapping of benefits
under that system, to a former member of the temporary
staff who resides in that Member State and is entitled to
unemployment benefits paid under the Conditions of Employ-
ment of Other Servants of the European Communities.