Case C-436/01: Reference for a preliminary ruling by the Hof van Cassatie van Belgie by decision of that court of 5 October 2004 in the case of Léopold Henri Van Esbroeck against Openbaar Ministerie
Date: 2004-12-04
Institutions: Court of Justice
Subjects: Belgium, Norway, Schengen Agreement, export, import, interpretation of the law, judicial cooperation in criminal matters in the EU, legal process, narcotic, psychotropic substance

4.12.2004

EN

Official Journal of the European Union

C 300/35

The legislation also constitutes a genuine obstacle for unregis-
tered parties who wish to offer their services in Belgium. They
must accept receiving the amount billed less 15 %, even if they
have no tax debt to which the amount withheld could be
applied, and they can recover that sum only after a certain
time, by applying for its restitution.

Those measures cannot be regarded as objectively justified. First
of all, in the majority of cases a person providing services who
is established in another Member State is not liable for the
taxes to which the legislation relates. Also, in specific situations
where tax debts would be payable or recoverable in Belgium,
the mechanism set up by the provisions must, because of its
general nature, be considered disproportionate.

Finally, the possibility of registration does not justify the obliga-
tion to withhold and the joint and several liability. The action
involved in the registration procedure, which goes far beyond
merely communicating information to the Belgian authorities,
means that registration is not a valid alternative for undertak-
ings not established in Belgium which wish to exercise their
freedom to offer their services in Belgium occasionally. The
requirement to register renders the Treaty provisions intended
to guarantee the freedom to provide services entirely redun-
dant.

Reference for a preliminary ruling by the Korkein oikeus
by order of that court of 6 October 2004 in the case of
Jan-Erik Anders Ahokainen and Mati Leppik against Viral-
linen syttäjä

(Case C-434/04)

(2004/C 300/66)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Korkein oikeus (Supreme
Court) (Finland)) of 6 October 2004, which was received at the
Court Registry on 11 October 2004, for a preliminary ruling in
the case of Jan-Erik Anders Ahokainen and Mati Leppik against
Virallinen syttäjä (Public Prosecutor).

The Korkein oikeus asks the Court of Justice to give a preli-
minary ruling on the following questions:

2. If the above question is answered in the affirmative, is the
licence system to be regarded as permitted under Article 30
EC?

Reference for a preliminary ruling by the Cour de cassa-
tion de Belgique by decision of that court of 6 October
2004 in the case of Sébastien Victor Leroy against
Ministère public

(Case C-435/04)

(2004/C 300/67)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Cour de cassation de
Belgique (Belgium Court of Cassation) of 6 October 2004
received at the Court Registry on 14 October 2004, for a preli-
minary ruling in the case of Sébastien Victor Leroy against
Ministère public on the following question:

Do Articles 49 to 55 of the Treaty of 25 March 1957 estab-
lishing the European Community preclude a national law of a
Member State which prohibits a person who resides and works
in that State from using in that State a vehicle which belongs
to a leasing company established in another Member State
when that vehicle has not been registered in the former State,
even if it has been in the latter?

Reference for a preliminary ruling by the Hof van Cassatie
van Belgie by decision of that court of 5 October 2004 in
the case of Léopold Henri Van Esbroeck against Openbaar
Ministerie

(Case C-436/01)

(2004/C 300/68)

1. Is Article 28 EC to be interpreted as precluding legislation
of a Member State under which non-denatured ethyl alcohol
of over 80 % (spirits) may be imported only by a person
who has obtained a licence to do so?

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hof van Cassatie van Belgie
(Court of Cassation (Belgium)) of 5 October 2004, received at
the Court Registry on 13 October 2004, for a preliminary
ruling in the case of Léopold Henri Van Esbroeck against Open-
baar Ministerie on the following questions:

C 300/36

EN

Official Journal of the European Union

4.12.2004

‘1. Must Article 54 of the Convention of 19 June 1990 imple-
menting the Schengen agreement be construed as meaning
that it may apply in proceedings before a Belgian court in
regard to a person against whom a prosecution is brought
in Belgium after 25 March 2001 before a criminal court in
respect of the same offences for which that person was
convicted by judgment of Norwegian criminal court of 2
October 2000, and where the sentence imposed has already
been served, in a situation where, pursuant to Article 2(1)
of
the Agreement of 18 May 1999 concluded by the
Council of the European Union with the Republic of Ireland
and the Kingdom of Norway concerning the latters' associa-
tion with the implementation, application and development
of the Schengen acquis, Article 54 of the Convention imple-
menting the Schengen agreement is to be implemented and
applied by Norway only as from 25 March 2001?’

If the reply to Question 1 is affirmative:

‘2. Must Article 54 of the Convention of 19 June 1990 imple-
menting the Schengen Agreement, read with Article 71
thereof, be construed as meaning that offences of posses-
sion for the purposes of export and import in respect of the
same narcotic drugs and psychotropic substances of any
kind,
including cannabis, and which are prosecuted as
exports and imports respectively in different countries
which have signed the Schengen agreement, or where the
Schengen acquis is implemented and applied, are deemed to
be the “same offences” as mentioned in Article 54 afore-
said?’

Action brought on 15 October 2004 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-437/04)

(2004/C 300/69)

Justice of

An action against the Kingdom of Belgium was brought before
the European Communities on 15
the Court of
October 2004 by the Commission of the European Commu-
nities, represented by J.-F. Pasquier, acting as Agent, with an
address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

— declare that, by imposing a tax which infringes the Euro-
pean Communities'
the Kingdom of
Belgium has failed to fulfil its obligations under Article 3 of
the Protocol on the privileges and immunities of the Euro-
pean Communities;

immunity,

fiscal

Pleas in law and main arguments

fiscal

immunity under Article 3 of

The imposition by an Ordonnance Régionale of 23 July 1992
of a regional tax on occupiers of buildings and owners of real
property rights over certain buildings situated within the terri-
tory of the Région de Bruxelles-Capitale is an infringement of
the
the Communities'
Protocol on the privileges and immunities of the European
Communities of 8 April 1965. That Ordonnance has innovated
by comparison to the previous legislation by adding to the tax
imposed on occupiers, a tax on owners in the event of
commercial occupancy of a building with more than a certain
floor area. As the drafting history of the Ordonnance of 23 July
1992 shows, such taxation of owners is, in fact, a legal device
intended to circumvent the fiscal immunity of certain persons
or institutions occupying buildings. It is on those persons and
among them the Communities that the economic burden of
the tax actually falls, either because of contractual stipulations
in leases, under which they are to bear all rates and taxes on
they obtain exemption therefrom as
the building, unless
its effect on the rental.
regards the lessor, or because of
According to the case-law of the Court of Justice, any legal
provision which, without expressly subjecting the Community
to a tax, has the express aim and effect of making the Com-
munity, even indirectly but nonetheless compulsorily, bear a
tax, infringes the principle of immunity.

Action brought on 21 October 2004 by the Kingdom of
Spain against the Council of the European Union

(Case C-442/04)

(2004/C 300/70)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 21 October 2004 by the Kingdom of Spain, repre-
sented by Enrique Braquehais Conesa, Abogado del Estado,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Articles 1 to 6 of Council Regulation (EC) No
1415/2004 (1) of 19 July 2004 fixing the maximum annual
fishing effort for certain fishing areas and fisheries, which
implement Articles 3 and 6 of Council Regulation (EC) No
1954/2003 (2) of 4 November 2003 on the management of
the fishing effort relating to certain Community fishing
areas and resources and modifying Regulation (EEC) No
2847/93 (3) and repealing Regulations (EC) No 685/95 (4)
and (EC) No 2027/95 (5); and

— order the Kingdom of Belgium to pay the costs.

— order the Council of the European Union to pay the costs.