Case C-197/04: Action brought on 30 April 2004 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2004-06-26
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, excise duty, tax system, tobacco, tobacco industry

26.6.2004

EN

Official Journal of the European Union

C 168/3

The applicant claims that the Court should:

and the Commissioners of Inland Revenue on the following
question:

— Declare that, since ANAS S.p.A. awarded the concession for
the construction and management of
the ‘Pedemontana
Veneta Ovest’ motorway to the Società per l'autostrada
Brescia-Verona-Vicenza-Padova p.a., by direct concession by
means of a contract signed on 7 December 1999 without
prior publication of a notice, and where the requirements
for such a concession were not met, the Italian Republic
has failed to fulfil its obligations under Council Directive
93/37/EEC (1) of 14 June 1993 coordinating the procedures
for the award of public works contracts and in particular
Articles 3(1) and 11(3), (6) and (7) thereof;

— Order the Italian Republic to pay to the costs.

Pleas in law and main arguments:

According to the Commission, ANAS's concession relating to
the construction and management of the ‘Pedemontana Veneta
Ovest’ motorway without prior publication of a notice does
not comply with Directive 93/37/EEC and in particular with
Articles 3(1) and 11(3), (6) and (7) thereof.

Article 3 of the Directive provides for the application of certain
advertising rules at Community level where the contracting
authorities conclude a public works concession contract if the
value of that contract exceeds EUR 5 million. In particular,
under Article 11(3) of the directive, contracting authorities
wishing to award a works concession contract must make
known that intention by means of a notice to be sent, pursuant
to Article 11(7) of the directive, to the Office for Official Publi-
cations of the European Communities.

Since the contract for the construction and management of the
‘Pedemontana Veneta Ovest’ motorway is worth approximately
EUR 350 million, it clearly should have been the subject of
publication in the Official Journal of the European Communities.

(1) OJ L 199 of 9.8.1993, p. 54.

‘Do articles 43, 49 and 56 of the EC Treaty preclude national
tax legislation such as that in an issue in the main proceedings,
which provides in specified circumstances for the imposition of
a charge upon a company resident in that Member State in
in
respect of
another Member State and subject to a lower level of taxation?’

the profits of a subsidiary company resident

Action brought on 30 April 2004 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-197/04)

(2004/C 168/06)

the Federal Republic of Germany was
An action against
brought before the Court of Justice of the European Commu-
nities on 30 April 2004 by the Commission of the European
Communities, represented by K. Gross, with an address for
service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by applying the tax rate for fine-cut tobacco
for self-rolled cigarettes to rolls of tobacco sold under the
name ‘West Single Packs’, the Federal Republic of Germany
has failed to fulfil
its obligations under Article 4(1)(b) of
Council Directive 95/59/EC (1) on taxes other than turnover
consumption of manufactured
taxes which affect
tobacco and under the first paragraph of Article 2 of
Council Directive 92/79/EEC (2) of 19 October 1992 on the
approximation of taxes on cigarettes;

the

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments:

Reference for a preliminary ruling by the Special Commis-
sioners by order of that court dated 29 April 2004, in the
case of Cadbury Schweppes plc and Cadbury Schweppes
Inland
Overseas Ltd against

the Commissioners of
Revenue

In the Commission's view, the rolls of tobacco sold on the
German market under the name ‘West Single Packs’, which
consumers can wrap in a separately sold cigarette paper with a
filter by simple non-industrial handling, are cigarettes within
the meaning of Article 4(1)(b) of Council Directive 95/59/EG
and, accordingly, must be taxed as such.

(Case C-196/04)

(2004/C 168/05)

The German provisions applying the tax rate for fine-cut
tobacco for self-rolled cigarettes to ‘West Single Packs’ thus
infringe Article 4(1) of Council Directive 95/59/EC and the first
paragraph of Article 2 of Council Directive 92/79/EEC.

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the Special Commissioners
dated 29 April 2004, which was received at the Court Registry
on 3 May 2004,
for a preliminary ruling in the case of
Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd

(1) OJ 1995 L 291, p. 40.
(2) OJ 1992 L 316, p. 8.