Case C-49/04: Action brought on 9 February 2004 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2004-04-17
Institutions: Court of Justice
Subjects: approximation of laws, copyright, information society

17.4.2004

EN

Official Journal of the European Union

C 94/19

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of that Court of 30 January 2004 in
the case of Levob Verzekeringen B.V., OB Bank N.V., c.s,
against Staatssecretaris van Fiananciën

(Case C-46/04)

(2004/C 94/39)

(Case C-41/04)

(2004/C 94/38)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hoge Raad der Nederlanden
of 30 January 2004, received at
the Court Registry on 2
February 2004, for a preliminary ruling in the case of Levob
Verzekeringen B.V., OB Bank N.V., c.s, against Staatssecretaris
van Fiananciën on the following questions:

1 (a) Are Article 2(1) and Article 5(1) of the Sixth Directive,
in conjunction with Article 6(1) thereof, to be inter-
preted as meaning that the acquisition of software, such
as that in the present case and on terms such as those at
issue in this dispute – whereby separate payment
is
stipulated in respect of the standard software, recorded
on a carrier, developed and put on the market by the
supplier, on the one hand, and the subsequent customi-
sation thereof to the meet the purchaser's requirements,
on the other – must be regarded as a single supply?

(b) If the answer to the above question is in the affirmative,
are these provisions to be interpreted as meaning that
this supply must be regarded as a service (of which the
supply of the goods, namely the carriers, forms part)?

(c) If the answer to that question is in the affirmative,

is
Article 9 of the Sixth Directive (in the version in force
until 6 May 2002) to be interpreted as meaning that this
service is supplied at the place referred to in Article 9(1)?

(d) If the answer to the previous question is in the negative,
which part of Article 9(2) of the Sixth Directive is applic-
able?

2 (a) If the answer to Question 1a is in the negative, are the
referred to therein to be interpreted as
provisions
meaning that the provision of non-customised software
on the carriers must be regarded as a supply of tangible
property for which the agreed separate price constitutes
the consideration for the purposes of Article 11A(1)(a)
of the Sixth Directive?

(b) If the answer to this question is in the negative, is Article
9 of the Sixth Directive to be interpreted as meaning
that the service is supplied at the place referred to in
Article 9(1) or at one of the places referred to in Article
9(2)?

(c) Does the same apply to the service consisting of the
customisation of software as applies to the provision of
the standard software?

Reference for a preliminary ruling by the Corte Suprema
di Cassazione by order of that court of 6 November 2003
in the case of Aro Tubi Trafilerie S.p.A. against Ministero
dell'Economia e delle Finanze

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Corte Suprema di Cassa-
zione (Supreme Court of Cassation) of 6 November 2003,
received at the Court Registry on 6 February 2004, for a preli-
minary ruling in the case of Aro Tubi Trafilerie S.p.A. against
Ministero dell'Economia e delle Finanze on the following ques-
tion:

Must Directive 69/335/EEC (1) concerning indirect taxes on the
raising of capital, as amended by Directives 73/80/EEC (2) and
85/303/EEC (3), be interpreted as meaning that it precludes the
levying of proportional registration duty on a merger through
acquisition where all the share capital
is owned not by the
acquiring company but by the company acquired, in particular
with regard to the possible existence of a restriction on the free
movement of capital in this special case?

(1) OJ, English Special Edition 1969(II), p. 412
(2) OJ L 103 of 18.4.1973, p. 15
(3) OJ L 156 of 15.6.1985, p. 23

Action brought on 9 February 2004 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-49/04)

(2004/C 94/40)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on 9
February 2004 by the Commission of the European Commu-
nities, represented by Karen Banks and Wouter Wils, acting as
Agents.

The applicant claims that the Court should:

1. declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/29/EC (1) of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information
society, or, in any event, by failing to forward those provi-
sions to the Commission, the Kingdom of the Netherlands
has failed to fulfil its obligations under that directive;

2. order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments:

The period within which the directive had to be transposed
expired on 22 December 2002.

(1) OJ 2001 L 167 of 22.6.2001, p. 10.