Case C-498/03: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by order of that court dated 10 June 2003, in the case of 1) Kingscrest Associates Ltd, 2) Montecello Ltd (trading together as Kingscrest Residential Care Homes) against Commissioners of Customs and Excise
Date: 2004-01-24
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, interpretation of the law, provision of services, tax exemption

C 21/24

EN

Official Journal of the European Union

24.1.2004

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

Pleas in law and main arguments

1. Declare that, by failing to adopt and the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2001/59/EC of 6 August 2001
adapting to technical progress for the 28th time Council
Directive 67/548/EEC on the approximation of the laws,
regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous
substances (1) and, in any event, by not communicating
them to the Commission, the French Republic has failed
to fulfil its obligations under that directive; and

2. Order the French Republic to pay the costs.

Pleas in law and main arguments

The prohibition on the sale of food supplements by mail order,
laid down in Paragraph 50(2) of the Gewerbeordnung, is a
measure having equivalent effect to a quantitative restriction
on imports. It constitutes a greater obstacle to the sale of
products from other Member States than to that of domestic
products. Such a prohibition on sales by mail order makes it
necessary for traders from other Member States to establish a
place of business in Austria or attract sales partners there
whereas Austrian traders in any case already have a fixed place
of business in Austria, which can be advantageous to them in
marketing the food supplements manufactured by them.
Austrian traders have the advantage of being able to use areas
of the manufacturing premises or the premises on which their
place of business is situated as a sales outlet also. This
may represent a considerable cost advantage over foreign
manufacturers as a result of the expenditure saved.

The time-limit for transposition of the directive expired on
30 July 2002.

(1) OJ L 225 of 21 August 2001, p. 1.

The aims of the protection of consumers against health risks
and misrepresentation, which are put forward in order to
justify such a prohibition, may be achieved by more lenient
means which restrict the free movement of goods to a lesser
degree. The Austrian measure is thus a disproportionate
restriction on the free movement of goods.

Action brought on 24 November 2003 by the Com-
mission of the European Communities against the Repub-
lic of Austria

(Case C-497/03)

(2004/C 21/44)

Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by order of that court
dated 10 June 2003, in the case of 1) Kingscrest Associates
Ltd, 2) Montecello Ltd (trading together as Kingscrest
Residential Care Homes) against Commissioners of Cus-
toms and Excise

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 November 2003 by the Commission of the European
Communities, represented by J. C. Schieferer and B. Schima,
with an address for service in Luxembourg.

(Case C-498/03)

(2004/C 21/45)

The applicant claims that the Court should:

1.

hold that, by imposing in Paragraph 50(2) of the Gewer-
beordnung a prohibition on the sale of food supplements
by mail order, the Republic of Austria has failed to fulfil
its obligations under Article 28 EC;

2.

order the Republic of Austria to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by an order of the VAT and Duties
Tribunals, London Tribunal Centre, dated 10 June 2003, which
was received at the Court Registry on 26 November 2003, for
a preliminary ruling in the case of 1) Kingscrest Associates Ltd,
2) Montecello Ltd (trading together as Kingscrest Residential
Care Homes) and Commissioners of Customs and Excise on
the following questions:

24.1.2004

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Official Journal of the European Union

C 21/25

1.

2.

Is it permissible to resort to other language versions of
the Sixth Council Directive 77/388/EEC (1) to elucidate
the meaning of the word ‘charitable’ in Article 13A.1 (g)
and (h), or must the word have the same meaning as in
domestic law?

If article 13A(1)(g) and (h) are to be interpreted as
applying to an organisation that is recognised as having
a social character, are they to be interpreted as applying
to a profitmaking entity such as the Kingscrest Residential
Care Homes partnership?

3. Are article 13A.1 (g) and (h) of the Directive to be
interpreted as meaning that they confer on Member States
a discretion to recognise for the purposes of those
provisions an organisation which is registered under the
Care Standards Act 2000 (or the Registered Homes Act
1984 or the Children Act 1989) but which is not a body
governed by public law and does not have the status of a
charity under the domestic law of the Member State
concerned?

(1) 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 13.6.77,
p. 1).

Appeal brought on 26 November 2003 (fax: 25 November
2003) by Peter Biegi Nahrungsmittel GmbH and Com-
monfood Handelsgesellschaft für Agrar-Produkte mbH
against the judgment delivered on 17 September 2003 by
the Fourth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
Commonfood Handelsgesellschaft
für Agrar-Produkte
mbH, and the Commission of the European Communities

(Case C-499/03 P)

(2004/C 21/46)

An appeal against the judgment delivered on 17 September
2003 by the Fourth Chamber of the Court of First Instance of
the European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
Commonfood Handelsgesellschaft für Agrar-Produkte mbH,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 26 November 2003 (fax: 25 November 2003) by Peter
Biegi Nahrungsmittel GmbH and Commonfood Handelsge-
sellschaft für Agrar-Produkte mbH, represented by Dr Klaus
Landry and Dr Lothar Harings of Sozietät Graf von Westphalen
Bappert & Modest, Große Bleichen 21, D-20354, Hamburg.

The appellant claims that the Court should:

— set aside the contested judgment of the Court of First

Instance of 17 September 2003 (1) and

— 1.

in Case T-309/01,

annul the Commission Decision of 14 August 2001
(REC 4/00)
in so far as it requires subsequent
accounting for import duties in the amount of
DEM 218 605,65, and order the Commission to pay
the costs of the proceedings;

2.

in Case T-239/02,

annul the Commission Decision of 5 March 2002
(REC 4/01)
in so far as it requires subsequent
accounting for import duties in the amount of
DEM 222 116,06, and order the Commission to pay
the costs of the proceedings.

Pleas in law and main arguments

The appellants contest the judgment of the Court of First
Instance on the following grounds:

— Breach of Article 220(2)(b) of Council Regulation (EEC)
No 2913/92 (2). The Court of First Instance incorrectly
based its ruling on a finding that the error made by the
competent customs authority was detectable by the
appellants. In the contested judgment, the Court of First
Instance exaggerated the duty of care to be expected of
the economic operators concerned. In addition, it failed
to appreciate the complexity of the applicable rules.

— Flawed procedure in so far as the Court of First Instance
incorrectly declined to hear the witnesses named by the
appellants. Instead, it based its judgment on assumptions
detrimental to the appellants.

(1) Not yet published in the ECR.
(2) OJ L 302, p. 1.

Action brought on 26 November 2003 by the Com-
mission of the European Communities against the Portu-
guese Republic

(Case C-500/03)

(2004/C 21/47)

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