Case C-540/03: Action brought on 22 December 2003 by the European Parliament against the Council of the European Union
Date: 2004-02-21
Institutions: Court of Justice
Subjects: Council of the European Union, EU Member State, EU migration policy, European Parliament, action for annulment (EU), family migration, foreign national, rights of aliens

21.2.2004

EN

Official Journal of the European Union

C 47/21

(d) discriminatory, and/or

(e)

contrary to the fundamental freedom to pursue a trade or
business?

(1) fixing for 2003 the fishing opportunities and associated conditions
for certain fish stocks and groups of fish stocks, applicable in
Community waters and, for Community vessels, in waters where
catch limitations are required (OJ L 356, 31.12.2002, p. 12).
(2) amending Regulation (EC) No 2341/2002 fixing for 2003 the
fishing opportunities and associated conditions for certain fish
stocks and groups of fish stocks, applicable in Community waters
and, for Community vessels, in waters where catch limitations are
required (OJ L 97, 15.04.2003, p. 11).

(3) on the allocation of additional days absent from port to Member
States in accordance with Annex XVII of Council Regulation
(EC) No 2341/2002 (Text with EEA relevance) (notified under
document number C(2003) 762) (OJ L 71, 15.03.2003, p. 28).

person on the purchase of goods and services intended
for both activities,
is it necessary to include in the
denominator of the fraction for calculation not only the
annual turnover but also the value of work in progress at
the end of each year which has not yet been put on the
market and for which no value, total or partial, has been
received?

— Or to the effect that only turnover is covered?

(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, 13.06.1977, p. 1).

(2) CIVA (Value Added Tax Code).

Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, Portugal, by order of that Court
of 26 November 2003 in the case of António Jorge Lda
against Fazenda Pública

Action brought on 22 December 2003 by the European
Parliament against the Council of the European Union

(Case C-536/03)

(2004/C 47/34)

(Case C-540/03)

(2004/C 47/35)

Reference has been made to the Court of Justice of the
European Communities by order of the Supremo Tribunal
Administrativo, Portugal, of 26 November 2003, received at
the Court Registry on 22 December 2003, for a preliminary
ruling in the case of António Jorge Lda against Fazenda Pública
on the following questions:

— In what sense must Article 19 of the Sixth Council
Directive of 17 May 1977 (77/388/EEC) be inter-
preted? (1)

— Is Article 23 (4) of the CIVA (2) compatible with the
abovementioned provision, when interpreted to the effect
that, where the taxable person is an undertaking engaged
in the real-estate business, carrying out works in two
sectors of activity, one being the construction of buildings
for sale (exempt from VAT) and the other contract work
(subject to VAT), in order to calculate the pro rata or
percentage deduction of VAT borne by that taxable

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 22 December 2003 by the European Parliament,
represented by H. Duintjer Tebbens and A. Caiola, acting as
Agents, with an address for service in Luxembourg.

The European Parliament claims that the Court should:

— Annul, pursuant to Article 230 EC, the last subparagraph
of Article 4(1), Article 4(6) and Article 8 of Council
Directive 2003/86/EC of 22 September 2003 on the right
to family reunification (1);

— Order the defendant to pay the costs.

C 47/22

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Official Journal of the European Union

21.2.2004

1.

Should Article 49 of the EC Treaty be interpreted as
precluding the introduction, by a national or local
authority, of a tax on mobile and personal communi-
cations infrastructures used to carry on activities covered
by licences and authorisations?

2. Given that Article 3c of Commission Directive 90/388/
EEC of 28 June 1990 (1), as inserted by Commission
Directive 96/2/EC of 16 January 1996 (2) amending
Directive 90/388/EEC with regard to mobile and personal
communications, refers to the lifting of ‘all restrictions’,
does that article preclude the introduction, by a national
or local authority, of a tax on mobile and personal
communications infrastructures used to carry on activities
covered by licences and authorisations?

(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
tition in the markets for telecommunications services (OJ L 192,
24.7.1990, p. 10).

(2) Commission Directive 96/2/EEC of 16 January 1996 amending
Directive 90/388/EEC with regard to mobile and personal com-
munications (OJ L 20, 26.1.1996, p. 59).

Pleas in law and main arguments

This action for annulment is aimed at defending fundamental
rights, especially the rights of minors, in the Community legal
order. The Directive, whilst providing for valid rules for
codifying the law governing family reunification for third-
country nationals, nevertheless contains a number of pro-
visions which are unacceptable having regard to fundamental
rights, including the right to family life and the right not to be
discriminated against, compliance with which must be ensured
in the legal order of the European Union pursuant to Article 6
of the Treaty on European Union.

The right to family life as recognised by Article 8 of the
1950 European Convention on Human Rights (ECHR) and
interpreted in the case-law of the European Court of Human
Rights can be restricted only for certain reasons and each case
calls for a balancing of the interests of the third-country
nationals concerned and those of the host State. Derogations
from the right to family reunification which are expressly
authorised by the aforementioned provisions of the directive
go beyond the permitted restrictions and violate the fundamen-
tal right to family life and the right not to be discriminated
against as guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States of the
EU as general principles of Community law, as established by
Article 6(2) of the Treaty on European Union.

(1) OJ 2003 L 251, p. 12.

Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in
the case of S.A. Belgacom Mobile against Commune de
Schaerbeek

Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in
the case of S.A Mobistar against Commune de Fléron

(Case C-545/03)

(2004/C 47/37)

(Case C-544/03)

(2004/C 47/36)

Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)
of 8 December 2003, received at the Court Registry on
23 December 2003, for a preliminary ruling in the case of S.A.
Belgacom Mobile against Commune de Schaerbeek on the
following questions:

Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)
of 8 December 2003, received at the Court Registry on
23 December 2003, for a preliminary ruling in the case of S.A
Mobistar against Commune de Fléron on the following
questions:

1.

Should Article 49 of the EC Treaty be interpreted as
precluding the introduction, by a national or local
authority, of a tax on mobile and personal communi-
cations infrastructures used to carry on activities covered
by licences and authorisations?