Judgment of the Court (Sixth Chamber) of 29 April 2004 in Case C-387/01 (reference for a preliminary ruling by the Verwaltungsgerichtshof): Harald Weigel and Ingrid Weigel v Finanzlandesdirektion für Vorarlberg (Free movement of workers — Importation of a car — Duty payable on standard consumption (‘Normverbrauchsabgabe’) — Customs duties and duties having equivalent effect — Discriminatory taxation — Sixth VAT Directive — Turnover tax)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: VAT, free movement of workers, interpretation of the law, motor car, tax harmonisation, tax on consumption

30.4.2004

EN

Official Journal of the European Union

C 118/13

1. Article 3(1) of European Parliament and Council Directive
94/62/EC of 20 December 1994 on packaging and packaging
waste must be construed as meaning that plastic carrier bags given
to customers in a shop, whether free of charge or not, are packa-
ging within the meaning of that directive.

1) Dismisses the appeal;

2) Orders British Sugar plc to pay the costs.

2. The concept of ‘producer’ in the context of the first subparagraph
of Article 3(1) of Directive 94/62 refers to the producer of the
goods, not the manufacturer of the packaging produced.

(1) OJ C 317, 10.11.2001.

(1) OJ C 331, 24.11.2001.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-359/01 P: British Sugar plc v Tate & Lyle plc,
Napier Brown & Co. Ltd and Commission of the European
Communities (1)

(Appeal — Competition — Sugar market — Article 85(1) of
the EC Treaty (now Article 81(1) EC) — Agreement —
Effect on trade between Member States — Fine — Propor-
tionality)

(2004/C 118/23)

(Language of the case: English)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-359/01 P: appeal by British Sugar plc, established in
Peterborough (United Kingdom), (Lawyers: T. Sharpe QC and
D. Jowell, barrister, and A. Nourry, solicitor) against the judg-
ment of the Court of First Instance of the European Commu-
nities (Fourth Chamber) of 12 July 2001 in Joined Cases T-
202/98, T-204/98 and T-207/98 Tate & Lyle and Others v
Commission [2001] ECR II-2035, seeking the annulment of
that judgment, the other parties to the proceedings being: Tate
& Lyle plc, established in London (United Kingdom), Napier
Brown & Co. Ltd, established in London (United Kingdom),
first
applicants at
the European
Communities
(Agents: K. Wiedner, assisted by N. Khan,
barrister) — the Court (Fifth Chamber), composed of: P. Jann,
acting for the President of the Fifth Chamber, C.W.A Timmer-
mans and S. von Bahr (Rapporteur),
Judges; C. Stix-Hackl,
Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, has given a judgment on 29 April 2004, in which it:

instance, Commission of

(Sixth Chamber)

of 29 April 2004

in Case C-387/01 (reference for a preliminary ruling by the
Verwaltungsgerichtshof): Harald Weigel and Ingrid Weigel
v Finanzlandesdirektion für Vorarlberg (1)

(Free movement of workers — Importation of a car — Duty
payable on standard consumption (‘Normverbrauchsabgabe’)
— Customs duties and duties having equivalent effect —
Discriminatory taxation — Sixth VAT Directive — Turnover
tax)

(2004/C 118/24)

(Language of the case: German)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-387/01: reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Federal Administrative Court)
(Austria) for a preliminary ruling in the proceedings pending
before that court between Harald Weigel and Ingrid Weigel, on
the one hand, and Finanzlandesdirektion für Vorarlberg, on the
other, concerning the interpretation of Articles 12 EC, 23 EC,
25 EC, 39 EC and 90 EC, and 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 (OJ
1977 L 145, p. 1), as amended by Council Directive
91/680/EEC of 16 December 1991 supplementing the
common system of value added tax and amending Directive
77/388/EEC with a view to the abolition of fiscal frontiers (OJ
1991 L 376, p. 1) – the Court (Sixth Chamber), composed of:
V. Skouris, acting as President of
the Sixth Chamber, C.
J.-P. Puissochet, R. Schintgen and N. Colneric
Gulmann,
Judges; A. Tizzano, Advocate General; M.-F.
(Rapporteur),
Contet, Principal Administrator, for the Registrar, has delivered
a judgment on 29 April 2004, the operative part of which is as
follows:

C 118/14

EN

Official Journal of the European Union

30.4.2004

(1) Articles 39 EC and 12 EC do not preclude a case in which an
individual who, moving from one Member State, becomes estab-
lished in another Member State by reason of a change in his
imports his car into the
place of work and, on that occasion,
latter State is made liable to a duty on consumption such as the
basic ‘Normverbrauchsabgabe’ in issue in the main proceedings.

(2) A duty on consumption such as the basic ‘Normverbrauchsab-
gabe’ in issue in the main proceedings constitutes internal taxa-
tion, the compatibility of which with Community law must be
examined in the light of Article 90 EC and not in that of Articles
23 EC and 25 EC.

(3) Article 90 EC must be construed as not precluding a duty on
consumption such as the basic ‘Normverbrauchsabgabe’ in issue
in the main proceedings in so far as the amounts of that duty
accurately reflect the depreciation in real terms in the value of
second-hand motor vehicles imported by an individual and permit
attainment of the objective of taxation of such vehicles which is in
no case greater than the amount of the residual duty included in
the value of similar second-hand vehicles already registered within
the national territory.

(4) Article 90 EC must be construed as precluding the levying, in the
event of importation by an individual of a second-hand car from
another Member State, of a 20 % surcharge on a duty having
the characteristics of the basic ‘Normverbrauchsabgabe’ in issue in
the main proceedings.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

29 April 2004

in Case C-418/01 (reference for a preliminary ruling from
IMS Health
the the Landgericht Frankfurt am Main):

GmbH & Co. OHG v NDC Health GmbH & Co. KG (1)

(Competition — Article 82 EC — Abuse of a dominant posi-
tion — Brick structure used to supply regional sales data for
pharmaceutical products in a Member State — Copyright —
Refusal to grant a licence)

(2004/C 118/25)

(Language of the case: German)

between IMS Health GmbH & Co. OHG and NDC Health
GmbH & Co. KG - on the interpretation of Article 82 EC - the
Court, composed of: P. Jann (Rapporteur), acting for the Presi-
dent of the Fifth Chamber, C. W. A. Timmermans and S. von
Bahr, Judges; A. Tizzano, Advocate General; H. A. Rühl, Prin-
cipal Administrator, for the Registrar, has given a judgment on
29 April 2004, in which it ruled:

1) For the purposes of examining whether the refusal by an under-
taking in a dominant position to grant a licence for a brick struc-
ture protected by copyright which it owns is abusive, the degree of
participation by users in the development of that structure and the
outlay, particularly in terms of cost, on the part of potential users
in order to purchase studies on regional sales of pharmaceutical
products presented on the basis of an alternative structure are
factors which must be taken into consideration in order to deter-
mine whether
indispensable to the
marketing of studies of that kind.

the protected structure is

2) The refusal by an undertaking which holds a dominant position
and owns a copyright of a brick structure indispensable to the
presentation of regional sales data on pharmaceutical products in
a Member State to grant a licence to use that structure to another
undertaking which also wishes to provide such data in the same
Member State, constitutes an abuse of a dominant position within
the meaning of Article 82 EC where the following conditions are
fulfilled:

— the undertaking which requested the licence intends to offer, on
the market
the data in question, new
products or services not offered by the copyright owner and for
which there is a potential consumer demand;

the supply of

for

— the refusal is not justified by objective considerations;

(Provisional translation; the definitive translation will be published in
the European Court Reports)

— the refusal is such as to reserve to the copyright owner the
for the supply of data on sales of pharmaceutical
market
products in the Member State concerned by eliminating all
competition on that market.

In Case C-418/01: reference to the Court under Article 234 EC
by the Landgericht Frankfurt am Main (Germany) for a preli-
minary ruling in the proceedings pending before that court

(1) OJ C 3 of 5.1.2002