Case C-491/03: Reference for a preliminary ruling by the Hessischen Verwaltungsgerichtshofes by order of that Court of 1 October 2003 in the case of Volkswirt Weinschänken GmbH against Stadt Frankfurt am Main
Date: 2004-02-21
Institutions: Court of Justice
Subjects: alcoholic beverage, excise duty, indirect tax, interpretation of the law, provision of services

C 47/14

EN

Official Journal of the European Union

21.2.2004

3.

In assessing the amount of damages, in addition to the
restitution of sums charged in breach of Community
rules, is the national court required (again as a matter of
Community law) to award the injured party a sum by way
of punitive damages against those persons responsible
for the prohibited agreement or abuse of a dominant
position?

4. Does Community law also require the payment of

damages for non-material loss?

5. As a matter of Community law, is the national court
required of its own motion to order the payment of
punitive damages or damages for non-material loss?

2.

3.

If the first question is answered in the affirmative: are
Article 2(1) and Article 17 of the Sixth Directive to be
interpreted as meaning that all services obtained in
connection with a listing on the stock market are to be
attributed to an exempt supply and that for that reason
there is no right to a deduction of input tax?

If the first question is answered in the negative: is there a
right under Article 17(1) and (2) of the Sixth Directive to
deduct input tax on the ground that the services in respect
of which a deduction of input tax is claimed (advertising,
agent’s fees, and legal and technical advice) are used for
the purposes of the undertaking’s taxable transactions?

6.

Is the limitation period of one year for bringing an action
for damages for breach of Articles 81 and 82 EC under
Italian law too short and therefore in conflict with
Community law?

(1) OJ L 145, p. 1.

7. As a matter of Community law, for the purposes of the
limitation period for bringing an action for damages,
does time begin to run from the day on which the
infringement of Articles 81 and 82 EC was committed or
the day on which that infringement came to an end?

8. Does Community law require national courts to disapply
national rules in conflict with Community law or rather
to interpret them so as to comply with Community law?

Reference for a preliminary ruling by the Unabhängigen
Finanzsenats der Außenstelle Linz by order of that Court
of 20 October 2003 in the case of Kretztechnik AG
against Finanzamt Linz

(Case C-465/03)

(2004/C 47/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängigen Fi-
nanzsenats der Außenstelle Linz of 20 October 2003, received
at the Court Registry on 5 November 2003, for a preliminary
ruling in the case of Kretztechnik AG against Finanzamt Linz
on the following questions:

1.

In becoming listed on a stock market and in issuing
shares in that connection to new shareholders in return
for the issue price, does a public limited company
make a supply for consideration within the meaning of
Article 2(1) 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? (1)

Reference for a preliminary ruling by the Hessischen
Verwaltungsgerichtshofes by order of that Court of
1 October 2003 in the case of Volkswirt Weinschänken
GmbH against Stadt Frankfurt am Main

(Case C-491/03)

(2004/C 47/24)

Reference has been made to the Court of Justice of the
European Communities by order of the Hessischen Verwal-
tungsgerichtshofes of 1 October 2003, received at the Court
Registry on 20 November 2003, for a preliminary ruling in
the case of Volkswirt Weinschänken GmbH against Stadt
Frankfurt am Main on the following questions:

1. A local beverage duty bye-law defines as the subject-
matter of that duty ‘the sale of alcoholic beverages for
immediate consumption’, and as such a sale ‘any sale for
consumption on the premises’.
Is this duty another
indirect tax on products subject to excise duty for the
purposes of Article 3(1) and (2) of Council Directive
92/12/EEC (1) of 25 February 1992 on the general
arrangements for products subject to excise duty and on
the holding, movement and monitoring of such products,
or is it a tax on the supply of services relating to products
subject to excise duty, within the meaning of the second
subparagraph of Article 3(3) of Directive 92/12/EEC?

21.2.2004

EN

Official Journal of the European Union

C 47/15

2.

If the answer to the second alternative in question 1.
above is in the affirmative:

failed to fulfil its obligations under Articles 4, 8 and
9 of Council Directive 75/442/EEC (1) on waste, as
amended by Directive 91/156/EEC. (2)

Does the proviso ‘subject to the same proviso’ contained
in the second subparagraph of Article 3(3) of Directive
92/12/EEC refer, also on taxation of the supply of services
relating to products subject to excise duty as defined by
Article 3(1) of Directive 92/12/EEC, only to the condition
laid down in the first subparagraph of Article 3(3) of that
directive, namely ‘provided, however, that those taxes do
not give rise to border-crossing formalities in trade
between Member States’, or in such a case must ‘specific
purposes’ for the tax, as laid down in Article 3(2) of the
directive, also exist?

(1) OJ L 76, p. 1.

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

(Case C-502/03)

(2004/C 47/25)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 26 Nov-
ember 2003 by the Commission of the European Communi-
ties, represented by M. Konstantinidis, of its Legal Service.

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

According to the most recent records (December 2002), 1458
unlawful and uncontrolled waste tips are operating which
receive waste from 47 % of the country’s population.

The Greek authorities informed the Commission that the
programme to reduce unlawful and uncontrolled waste dis-
posal sites and their replacement with lawful
landfill sites
meeting public health requirements will only be completed at
the end of 2007.

The Commission considers that, inasmuch as it is allowing the
unlawful and uncontrolled sites to operate on its territory, the
Hellenic Republic is in breach of
its obligations under
Articles 4, 8 and 9 of Directive 75/442/EEC on waste, as
amended by Directive 91/156/EEC.

(1) OJ L 194 of 25.07.1975, p. 39.
(2) OJ L 78 of 26.3.1991, p. 32.

The Commission claims that the Court should:

— declare that, by failing to take all the measures necessary:

Action brought on 1 December 2003 (fax 26 November
2003) by the Federal Republic of Germany against the
Commission of the European Communities

— to ensure that waste is disposed of without
endangering human health and without harming
the environment,

— to prohibit the abandonment, dispοsal and uncon-
trolled treatment of waste, to ensure that any holder
of waste has it handled by a private or public waste
collector or by an undertaking which carries out
disposal, or disposes of it himself, in accordance
with the measures taken under Article 4,

— to ensure that the establishments or undertakings
which carry out disposal operations operate under a
permit from the competent authority or under a
permit which meets the legal requirements, has

(Case C-506/03)

(2004/C 47/26)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 1 December 2003 (fax 26 November 2003)
by the Federal Republic of Germany, represented by Wolf-
Dieter Plessing, Ministerialrat in the Federal Ministry of Finance,
and Christoph von Donat, Rechtsanwalt, with an address for
service at the Federal Ministry for Finance, Berlin (Germany).