Case C-496/03: Action brought on 24 November 2003 by the Commission of the European Communities against the French Republic
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, approximation of laws, dangerous substance, labelling, packaging

24.1.2004

EN

Official Journal of the European Union

C 21/23

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 November
2003 in the case of Senior Engineering Investments B.V.
against Staatssecretaris van Financiën

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 November
2003 in the case of Intermodal Transports B.V. against
Staatssecretaris van Financiën

(Case C-494/03)

(2004/C 21/41)

(Case C-495/03)

(2004/C 21/42)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
the Netherlands) of
der Nederlanden (Supreme Court of
21 November 2003, received at
the Court Registry on
24 November 2003, for a preliminary ruling in the case of
Senior Engineering Investments B.V. against Staatssecretaris
van Financiën on the following questions:

1. Does Article 4(2)(b) of Council Directive 69/335/EEC (1)
of 17 July 1969, as amended by Council Directive 85/
303/EEC (2) of 10 June 1985, permit capital duty to be
levied on a company in respect of a direct informal
capital contribution made by the parent of that company
to a subsidiary of
if so, what
circumstances are of relevance in that respect; in particu-
lar is it relevant whether or not that company must be
regarded, from an economic point of view, as the real
recipient of that direct informal capital contribution?

that company and,

2. Does

the freedom of establishment

laid down in
Article 52 of the EC Treaty (now, after amendment,
Article 43 EC), in conjunction with Article 58 of the EC
Treaty (now Article 48 EC), prohibit the tax authorities
of a Member State from pursing a policy which levies no
capital duty on a company in respect of a direct informal
capital contribution made by the parent of that company
to a subsidiary of that company, provided that that
subsidiary is established in that Member State, and is it
relevant in this respect — on the assumption that the
directive permits capital duty to be levied both on that
company and its subsidiary in a case such as the present
— whether or not more capital duty has been levied at
group level than would have been the case had both that
company and its subsidiary been established in the
Netherlands?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ L 249 of 3.10.1969,
p. 25).

(2) Council Directive 85/303/EEC of 10 June 1985 amending Direc-
tive 69/335/EEC concerning indirect taxes on the raising of capital
(OJ L 156 of 15.6.1985, p. 23).

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
the Netherlands) of
der Nederlanden (Supreme Court of
21 November 2003, received at
the Court Registry on
24 November 2003, for a preliminary ruling in the case
of Intermodal Transports B.V. against Staatssecretaris van
Financiën on the following questions:

1.

Should a national court refer questions on the interpret-
ation of the Combined Nomenclature (CN) (1) to the
Court of Justice of the European Communities for a
preliminary ruling in the case where a party to a dispute
brought before it concerning classification in the CN of a
certain product invokes a decision by a customs authority
laid down in binding tariff information issued to a third
party in respect of a similar product and the national
court takes the view that that binding tariff information
is at variance with the CN?

2. Must heading 8709 of the CN be interpreted as covering
vehicles such as those in issue in the present case?

(1) CN: Position under the Combined Nomenclature as referred to in
Article 1 of Council Regulation (EEC) No 2658/87 of 23 July
1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, OJ 1987 L 256.

Action brought on 24 November 2003 by the Com-
mission of the European Communities against the French
Republic

(Case C-496/03)

(2004/C 21/43)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 24 Novem-
ber 2003 by the Commission of the European Communities,
represented by C.-F. Durand and F. Simonetti, acting as Agents,
with an address for service in Luxembourg.

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: