Case C-234/04: Reference for a preliminary ruling by the Landesgericht Innsbruck by order of that court of 26 May 2004 in the case of Rosmarie Kapferer against Schlank & Schick GmbH
Date: 2004-10-09
Institutions: Court of Justice
Subjects: EU law - national law, commercial law, consumer protection, contract, interpretation of the law, jurisdiction

9.10.2004

EN

Official Journal of the European Union

C 251/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling by the Landesgericht
Innsbruck by order of that court of 26 May 2004 in the
case of Rosmarie Kapferer against Schlank & Schick
GmbH

(Case C-234/04)

(2004/C 251/01)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landesgericht Innsbruck
(Regional Court Innsbruck) (Austria) of 26 May 2004 received
at the Court Registry on 3 June 2004, for a preliminary ruling
in the case of Rosmarie Kapferer against Schlank & Schick
GmbH on the following questions:

A) The jurisdiction decision of the court of first instance:

1) Is the principle of cooperation enshrined in Article 10
EC to be interpreted as meaning that,
in the circum-
stances stated in the judgment of the Court of Justice in
Case C-453/00 Kühne & Heitz, a national court is also
obliged to review and reopen a final judicial decision if
it should infringe Community law? Are there any other
conditions applicable to the review and reopening of
judicial decisions in contrast to administrative decisions?

2) If the answer to the first question should be in the affir-

mative:

Is the period given under Paragraph 534 of the Zivilpro-
zessordnung (Austrian Code of Civil Procedure) for the
reopening of judicial decisions that are contrary to Com-
munity law compatible with the principle of full effec-
tiveness of Community law?

3) Furthermore, if the answer to the first question should

be in the affirmative:

Does a lack of international (or local) jurisdiction that is
not remedied by Article 24 of Council Regulation (EC)
No 44/2001 (1) of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in
civil and commercial matters constitute a breach of

Community law that, under the principles concerned,
can set aside the legal force of a judicial decision?

If the answer to the third question should be in the affir-
mative:

(or local)

4) Is a court of appeal obliged to review the issue of inter-
national
jurisdiction under Regulation No
44/2001 if the jurisdiction decision of the court of first
instance has become final but the decision on the merits
of the case has not? If so, is that review to be conducted
by the court of its own motion or only at the instigation
of one of the parties to the proceedings?

B) Jurisdiction over consumer contracts under Article 15(1)(c)

of Regulation No 44/2001:

1) Does a misleading promise of financial benefit that helps
to cause a contract to be concluded — that is to say,
prepares the ground for a contract — demonstrate a
sufficiently close connection with the intended conclu-
sion of a consumer contract
jurisdiction over
consumer contracts under Article 15(1)(c) of Regulation
No 44/2001 to be afforded to consequent claims?

for

If the answer to the first question should be in the
negative:

2) Is jurisdiction over consumer contracts afforded to
claims arising out of a pre-contractual obligation and
does a misleading promise of financial benefit that helps
to prepare the ground for a contract demonstrate a suffi-
ciently close connection with the pre-contractual obliga-
tion thereby established for jurisdiction over consumer
contracts also to be afforded thereto?

3) Is jurisdiction over consumer contracts afforded only if
the conditions stipulated by the undertaking for partici-
pation in the prize game are satisfied, even if those
conditions are not to be given any consideration in the
substantive claim under Paragraph 5j of the Konsumen-
tenschutzgesetz (Austrian Consumer Protection Law)?

If the answers to the first and second questions should
be in the negative:

C 251/2

EN

Official Journal of the European Union

9.10.2004

4) Is jurisdiction over consumer contracts afforded sui
generis to a specific statutory form of contractual perfor-
mance claim or sui generis to a constructive quasi-
contractual performance claim which arises as a result
of a promise of financial benefit made by an undertaking
and the claiming of
the financial benefit by the
consumer?

(1) OJ L 12, 2001, p. 1.

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that court of 26 May 2004 in the
case of EMAG Handel Eder OHG against Finanzlandes-
direktion für Kärnten (Berufungssenat II)

(Case C-245/04)

(2004/C 251/02)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Verwaltungsgerichtshof
(Austria), of 26 May 2004,
(Higher Administrative Court)
received at the Court Registry on 10 June 2004, for a preli-
minary ruling in the case of EMAG Handel Eder OHG against
Finanzlandesdirektion für Kärnten (Berufungssenat II) (Second
Appeal Chamber of the Carinthia Regional Tax Authority) for a
preliminary ruling on the following questions:

1. Is the first sentence of Article 8(1)(a) of the Sixth Council
Directive 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 (77/
388/EEC) (1) to be interpreted as meaning that the place
where dispatch or transport begins is relevant even when
several undertakings enter into arrangements for the supply
of the same goods and those arrangements are implemented
by way of a single movement of goods?

2. Are successive supplies to be treated as exempted intra-
Community supplies when several undertakings enter into
arrangements for the supply of the same goods and those
arrangements are implemented by way of a single move-
ment of goods?

3. If the answer to the first question is in the affirmative, is the
place at which the second supply begins the actual place of
departure of the goods or the place where the first supply
finishes?

4. Is the identity of the party having the right of disposal of
factor in

the goods during their movement a relevant
answering the first, second and third questions?

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that court of 26 May 2004 in the
case Turn- und Sportunion Waldburg against Finanz-
landesdirektion für Tirol

(Case C-246/04)

(2004/C 251/03)

Reference has been made to the Court of Justice of the Euro-
the Verwaltungsgerichtshof
pean Communities by order of
(Austria), of 26 May 2004,
(Higher Administrative Court)
which was received at the Court Registry on 10 June 2004, for
a preliminary ruling in the case of Turn- und Sportunion Wald-
burg against Finanzlandesdirektion für Tirol.

The Verwaltungsgerichtshof asks the Court of Justice to give a
preliminary ruling on the following questions:

1. May a Member State exercise its discretion under Article 13
C of the Sixth Council Directive 77/388/EEC (1) 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 (‘the directive’)
to give taxable persons the right, despite the tax exemption
for the letting of property provided for in Article 13 B(b) of
the directive, to opt for taxation only in a uniform manner
or may the Member State distinguish by reference to the
type of turnover or the group of taxable persons?

legislation,

2. Does Article 13 B(b) in conjunction with C(a) of the direc-
tive permit Member States'
like Paragraph
6(1)(14) of the Umsatzsteuergesetz 1994 (Law on turnover
tax; hereinafter ‘UStG 1994’) in conjunction with Paragraph
6(1)(16) of the UStG 1994, under which the possibility of
opting for taxation of turnover from leasing and letting is
limited in such a way that non-profit-making sport clubs do
not have that option?

3. Does Article 13 B(b) in conjunction with C(a) of the direc-
tive permit Member States' legislation, like Paragraph 2(5)(2)
of the UStG 1994 in conjunction with Paragraph 1(2)(1) of
the version of the Hobbies Order in BGBl Nr 33/1993
(Bundesgesetzblatt; Austrian Official Journal), under which
the possibility of opting for taxation of
turnover from
letting does not exist where the letting does not lead within
a foreseeable period of time to an overall profit or surplus
in income and concerns a building suitable for use as a
private dwelling?

(1) OJ 1977 L 145, p. 1.

(1) OJ L 145, p. 1.