Case C-409/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 2 August 2004, in the case of The Queen on the application of 1) Teleos plc 2) Unique Distribution Ltd 3) Synectiv Ltd 4) New Communications Ltd 5) Quest Trading Company Ltd 6) Phones Interntional Ltd 7) AGM Associates Ltd 8) DVD Components Ltd 9) Fonecomp Ltd 10) Bulk GSM 11) Libratech Ltd 12) Rapid Marketing Services Ltd 13) Earthshine Ltd 14) Stardex (UK) Ltd against Commissioners of Customs and Excise
Date: 2004-12-04
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, delivery, distributive trades, interpretation of the law, provision of services, tax exemption

C 300/26

EN

Official Journal of the European Union

4.12.2004

— action taken ultra vires,

infringement of Community law
and distortion of the facts and of the evidence as regards
the Court of First Instance's reconstruction of the infringe-
ment found by the Commission in Article 2 of the decision;

— action taken ultra vires,

infringement of Community law
and distortion of the facts and of the evidence as regards
the finding of the unlawfulness of the objects and/or the
effects of the supply contract between Dalmine and British
Steel, in so far as it restricted competition on the market
for plain end and threaded pipes;

— infringement of Community law and distortion of the facts
and of the evidence in so far as the terms of the supply
contract between Dalmine and British Steel were found to
be unlawful;

— in the alternative, infringement of Article 81 EC and breach
of
the
the duty to state reasons in the assessment of
Commission's compliance with Article 15 of Regulation No
17/62 and of the Guidelines on the method of setting fines,
as regards the gravity of
the infringement said to be
committed by Dalmine;

— and, lastly, again in the alternative, infringement of Article
81 EC and breach of the duty to state reasons in the assess-
ment of the Commission's compliance with Article 15 of
Regulation No 17/62 and with the Guidelines on the
method of setting fines, as regards the assessment of the
alleged to have been
duration of
infringement
the
committed by Dalmine and of
the attenuating circum-
stances.

(1) OJ, English Special Edition, Series I, Chapter 1959-1962, p. 87.

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen's Bench Division
(Administrative Court), by order of that court dated 2
August 2004, in the case of The Queen on the application
of 1) Teleos plc 2) Unique Distribution Ltd 3) Synectiv Ltd
4) New Communications Ltd 5) Quest Trading Company
Ltd 6) Phones Interntional Ltd 7) AGM Associates Ltd 8)
DVD Components Ltd 9) Fonecomp Ltd 10) Bulk GSM 11)
Libratech Ltd 12) Rapid Marketing Services Ltd 13) Earth-
shine Ltd 14) Stardex (UK) Ltd against Commissioners of
Customs and Excise

(Case C-409/04)

(2004/C 300/52)

Reference has been made to the Court of Justice of the Euro-
Justice
pean Communities by order of

the High Court of

(England & Wales), Queen's Bench Division (Administrative
Court), dated 2 August 2004, which was received at the Court
Registry on 24 September 2004, for a preliminary ruling in the
case of The Queen on the application of 1) Teleos plc 2)
Unique Distribution Ltd 3) Synectiv Ltd 4) New Communica-
tions Ltd 5) Quest Trading Company Ltd6) Phones Interntional
Ltd 7) AGM Associates Ltd 8) DVD Components Ltd 9) Fone-
comp Ltd 10) Bulk GSM 11) Libratech Ltd 12) Rapid Marketing
Services Ltd 13) Earthshine Ltd 14) Stardex (UK) Ltd and
Commissioners of Customs and Excise on the following ques-
tions:

1. In the relevant circumstances,

in
Article 28a(3) (1) (intra-Community acquisition of goods) to
be understood as meaning that intra-Community acquisition
takes place when:

is the term ‘despatched’

a. the right to dispose of the goods as owner passes to the
purchaser and the goods are supplied by the supplier by
placing them at the disposal of the purchaser (who is
registered for VAT in another Member State), on an ex
works contract of sale whereby the purchaser assumes
responsibility for removing the goods to a different
Member State from that of supply, at a secure warehouse
located in the supplier's Member State, and where the
contractual
documentary
evidence state that the intention is that the goods should
then be transported onwards towards a destination in
another Member State, but the goods have not yet physi-
cally left the territory of the Member State of Supply; or

documents

and/or

other

b. the right to dispose of the goods as owner passes to the
purchaser and the goods commence, but do not necessa-
rily complete, their journey towards a different Member
State (in particular, if the goods have not yet physically
left the territory of the Member State of supply); or

c. the right to dispose of the goods as owner has passed to
the purchaser and the goods have physically left the terri-
tory of the Member State of supply on their journey
towards a different Member State?

2. Is Article 28cA(a) to be interpreted as meaning that supplies

of goods are exempt from VAT where:

— the goods are supplied to a purchaser who is registered

for VAT in another Member State; and

— the purchaser contracts to purchase the goods on the
basis that, after he has acquired the right to dispose of
the goods as owner in the supplier's Member State, he
will be responsible for transporting the goods from the
supplier's Member State to a second Member State; and:

4.12.2004

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Official Journal of the European Union

C 300/27

a. the right to dispose of the goods as owner has passed
to the purchaser and the goods have been supplied
by the supplier by placing them at the disposal of the
purchaser, on an ex works contract of sale whereby
the purchaser assumes responsibility for removing
the goods to a different Member State from that of
supply, at a secure warehouse located in the suppli-
er's Member State, where the contractual documents
the
and/or other documentary evidence state that
intention is that the goods should then be trans-
ported onwards towards a destination in another
Member State, but the goods have not yet physically
left the territory of the Member State of Supply; or

b. the right to dispose of the goods as owner has passed
to the purchaser and the goods have commenced,
but not necessarily completed, their journey towards
a different Member State (in particular, the goods
have not yet physically left
the
Member State of supply); or

the territory of

c. the right to dispose of the goods as owner has passed
to the purchaser and the goods have left the territory
the Member State of supply on their journey
of
towards a second Member State; or

d. the right to dispose of the goods as owner has passed
to the purchaser and the goods can also be shown to
have actually arrived in the Member State of destina-
tion?

authorities

competent

3. In the relevant circumstances, where a supplier acting in
good faith has tendered to the competent authorities in his
Member State, after submission of a repayment claim, objec-
tive evidence which at the time of its receipt apparently
supported his right to exempt goods under Article 28cA(a)
initially accepted that
and the
evidence for the purpose of exemption,
in what circum-
stances (if any) may the competent authorities in the
Member State of supply nevertheless subsequently require
the supplier to account for VAT on those goods where
further evidence comes to their attention that either (a) casts
doubt upon the validity of
the earlier evidence or (b)
demonstrates that the evidence submitted was materially
false, but without the knowledge or the involvement of the
supplier?

4. Is the answer to question 3 above affected by the fact that
there was evidence that the purchaser made returns to the
tax authorities in the Member State of destination, where
those returns included as intra-Community acquisitions the
purchases the subject matter of these claims, the purchaser
entered an amount purporting to represent acquisition tax
and also claimed the same amount as input tax in accord-
ance with Article 17(2)(d) of the Sixth Directive?

(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to turnover

taxes — Common system of value added tax: uniform basis of
assessment (OJ L 145, 13.06.1977, p. 1).

Reference for a preliminary ruling by the Tribunale ammi-
nistrativo regionale per la Puglia by order of 22 July 2004
in the case pending before it between Associazione Nazio-
nale Autotrasporto Viaggiatori — A.N.A.V. and Comune di
Bari and A.M.T.A.B. Servizio SpA

(Case C-410/04)

(2004/C 300/53)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale amministrativo
regionale per la Puglia (Regional Administrative Court
for
Apulia) of 22 July 2004, received at the Court Registry on 27
September 2004, for a preliminary ruling in the case of Asso-
ciazione Nazionale Autotrasporto Viaggiatori — A.N.A.V.
against Comune di Bari and A.M.T.A.B. Servizio SpA on the
following question:

‘Is the part of paragraph V of Article 113 of Legislative Decree
No 267/00 as amended by Article 14 of Decree Law No 269/
03 that sets no limit on the freedom of a public authority to
choose between the different methods of awarding a contract
for the provision of a public service, and, in particular, between
an award as a result of a public and open tender procedure and
direct award to a company wholly controlled by the authority,
compatible with Community law, and, in particular, with the
obligations to ensure transparency and freedom of competition
pursuant to Articles 46, 49 and 86 of the Treaty?’

Action brought on 24 September 2004 by the Commission
of the European Communities against the Italian Republic

(Case C-412/04)

(2004/C 300/54)

Justice of

An action against the Italian Republic was brought before the
the European Communities on 24
Court of
September 2004 by the Commission of the European Commu-
nities, represented by Klaus Wiedner and Giuseppe Bambara,
acting as Agents.