Case C-430/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 8 July 2004 in the case of Finanzamt Eisleben against Feuerbestattungsverein Halle e.V.
Date: 2004-12-04
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, delivery, distributive trades, interpretation of the law, provision of services, public institution, restriction on competition, tax exemption

4.12.2004

EN

Official Journal of the European Union

C 300/33

The appellant claims that the Court should:

case of Finanzamt Eisleben against Feuerbestattungsverein Halle
e.V., on the following question:

— set aside that the judgment of the Fourth Chamber of the
Court of First Instance of 7 July 2004 in Case T-175/03
(Norbert Schmitt v European Agency for Reconstruction) in
full.

Giving judgment itself,

Is a private taxable person able to rely on the second sub-
paragraph of Article 4(5) of Council Directive 77/388/EEC (1)
where that
taxable person is in competition with a body
governed by public law and asserts that the non-taxation or
undertaxation of that body is unlawful?

— dismiss the action for annulment of the decision of the EAR
of 25 February 2003 terminating the contract of the appli-
cant at first instance as a member of the temporary staff;

(1) OJ L 145, p. 1.

— order the applicant at first instance and respondent on

appeal to pay the costs of the appeal.

Pleas and main arguments:

The Court of First Instance disregarded the prohibition on
ruling ultra petita in basing its decision on pleas and arguments
that had neither been raised directly nor elaborated upon to the
requisite legal standard by the applicant at first instance.

Furthermore, the Court of First Instance made an error of law
in interpreting clause 4 of
the temporary staff contract
concluded with Mr Schmitt as limiting the Agency's right to
terminate the contract to situations arising from a significant
reduction in, or cessation of, the Agency's operations before
the end of its mandate.

Reference for a preliminary ruling by the Bundesgericht-
shof by decision of that court of 29 June 2004 in the case
of Massachusetts Institute of Technology

(Case C-431/04)

(2004/C 300/63)

Lastly, the Court of First Instance also made an error of law in
considering that the legitimate expectations of the applicant at
first instance had been infringed when it is apparent from the
judgment that no clear and unconditional assurance, complying
and in accordance with the rules of the conditions of employ-
ment of other servants had been given to him in relation to his
remaining in post until the end of the Agency's actual mandate.

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of
the Bundesgerichtshof
(Federal Court of Justice) (Germany) of 29 June 2004 received
at the Court Registry on 7 October 2004, for a preliminary
ruling in the case of Massachusetts Institute of Technology on
the following questions:

1. Does the term ‘combination of active ingredients of a medic-
inal product’ within the meaning of Article 1(b) of Council
Regulation 1768/92 of 18 June 1992 concerning the crea-
tion of a supplementary protection certificate for medicinal
products (1) mean that the components of the combination
must all be active ingredients with a therapeutic effect?

2. Is there a ‘combination of active ingredients of a medicinal
product’ also where a combination of substances comprising
two components of which one component is a known
substance with a therapeutic effect for a specific indication
and the other component renders possible a pharmaceutical
form of the medicinal product that brings about a changed
efficacy of the medicinal product for this indication (in-vivo
implantation with controlled release of the active ingredient
to avoid toxic effects)?

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 8 July 2004 in the case of Finan-
zamt Eisleben against Feuerbestattungsverein Halle e.V.

(Case C-430/04)

(2004/C 300/62)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) (Germany) of 8 July 2004 received at the Court
Registry on 7 October 2004, for a preliminary ruling in the

(1) OJ L 182, p. 1.