Case C-488/04: Reference for a preliminary ruling by the Cour de cassation (France), chambre commerciale, financière et économique – by judgment of that court of 16 November 2004 in the case of Galeries de Lisieux SA against Organic Recouvrement
Date: 2005-02-05
Institutions: Court of Justice
Subjects: State aid, budgetary resources, interpretation of the law, pension scheme, retail outlet, social-security contribution, supermarket, tax system

C 31/10

EN

Official Journal of the European Union

5.2.2005

Pleas and main arguments

1. In order

the power

to prevent abuses in the receipt of aid for
skimmed-milk powder intended for animal feed, Regulations
(EC) No 1255/1999 and (EC) No 2799/1999 lay down
detailed machinery for monitoring undertakings using that
product. Although that machinery leaves to the Member
States
supplementary supervisory
measures in order to ensure observance of the provisions
concerning the grant of the aid, it none the less does not
allow them to impose on operators in the sector additional
obligations of a different nature from those which Regu-
lation No 2799/1999 imposes on the undertakings in
receipt of the aid.

to adopt

2. In particular,

it must be regarded as not open to the
Member States unilaterally to impose conditions affecting
the composition of
the powder milk which forms the
subject matter of Regulation No 2799/1999, such as the
admixture of colour tracers intended to make it plain that
the product is intended for animal feed.

3. Such condition cannot but impede trade in skimmed-milk
powder between the Member States.
In fact, since the
intended use of the product is not normally known at the
time of production, the requirement to add tracers imposed
by Italian legislation requires undertakings which are
engaged in trade in skimmed-milk powder on the Italian
market
to conduct complicated operations in regard to
consignments intended for that market. However, as has
been consistently held, common organisations of the market
are based, as regards intracommunity trade, on freedom of
commerce and preclude any national legislation which, as in
the present case, impedes trade between the Member States.

4. Furthermore, the Italian legislation at issue is damaging to
the functioning of the common organisation of the markets
in the milk sector which, as regards the aid schemes intro-
duced by it,
is based on uniform requirements applicable
erga omnes. Indeed it is plain that if all the Member States
considered themselves, in the same way as Italy, authorised
unilaterally to introduce ad hoc tracing rules for skimmed
milk-powder intended for animal feed, that would involve
insuperable difficulties for the operators in the sector who
would be subject to different sets of rules and would have
to differentiate their products depending on the rules
applied in 25 different national markets.

powder away from its stated use. Accordingly, that law
seeks to achieve the same aims as those underlying Articles
9 et seq. of Regulation No 2799/1999.

6. It is also stated in those preparatory documents that the
decision by the Italian authorities to depart from the super-
visory regime provided for in Regulation No 2799/1999 is
justified owing to the ineffectiveness in the Italian context of
the monitoring machinery provided for by the regulation.

7. That justification runs counter to settled case-law according
the Community has established a
to which, whenever
common organisation of the market in a given sector, the
Member States must refrain from any unilateral measure,
even if it serves to support the common policy. Secondly,
practical difficulties coming to light in the implementation
of a Community act do not permit the Member State unilat-
erally to dispense with observance of its own obligations.

8. Finally, the Italian authorities cannot rely on the fact that
Law No 250/2000 has never in fact been applied owing to
the fact that the Ministerial decree which was to specify the
tracers and to determine detailed rules concerning their use
was never adopted. As the Court has consistently held, the
fact that legislation contrary to Community law is scarcely
or indeed never applied cannot have the effect of nullifying
the infringement in that connection.

(1) OJ 1999 L 160, p. 48
(2) OJ 1999 L 340, p. 3

Reference for a preliminary ruling by the Cour de cassa-
tion (France), chambre commerciale, financière et écono-
mique – by judgment of that court of 16 November 2004
in the case of Galeries de Lisieux SA against Organic
Recouvrement

(Case C-488/04)

(2005/C 31/20)

(Language of the case: French)

5. Nor, moreover, can the Italian Government rely on the case-
law according to which introduction of a common organisa-
tion of markets does not prevent the Member States from
applying national provisions pursuing a public-interest
objective which differs from the objectives pursued by the
common organisation of the markets. In fact it is clear from
a reading of
to Law No
the preparatory documents
250/2000 that the aim of the provisions contained therein
the unlawful diversion of skimmed-milk
is

to prevent

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of
the Cour de cassation
(France), chambre commerciale, financière et économique (the
Court of Cassation (France), Commercial,
and
Economic Chamber) of 16 November 2004, received at the
Court Registry on 29 November 2004, for a preliminary ruling
in the case of Galeries de Lisieux SA against Organic Recouvre-
ment on the following question:

Financial

5.2.2005

EN

Official Journal of the European Union

C 31/11

Is Community law to be interpreted as meaning that a tax,
such as the tax to support the trade and craft sectors intro-
duced by the Law of 13 July 1972, which is assessed on the
basis of the sales area of retail stores in excess of 400 square
metres and the proceeds of which are paid into special
accounts of the old-age insurance funds of those in trade and
crafts for the purpose of paying special compensation aid,
which became cessation payments under Law No 81-1160 of
30 December 1981, must be classified as State aid, since it is
borne only by establishments with a sales area exceeding 400
square metres or a turnover in excess of EUR 460 000, and it
secures for the prospective recipient of the payment a reduc-
tion in charges as a result of the possibility of reducing any
payments he might make to a supplementary retirement
scheme?

2. Is Article 56(1) EC in conjunction with Article 58 EC to be
interpreted as meaning that the – partial – taxation as a
distribution of profits of payments of interest by a capital
company resident in a Member State to a loan provider in a
third country who is at the same time a shareholder in the
capital company is thereby prohibited because this is arbi-
trary discrimination or a disguised restriction of the free
movement of capital between a Member State and a third
country?

Reference for a preliminary ruling by the Gerechtshof te
's-Hertogenbosch by decision of that court of 9 June 2004
in the case of L.H. Piatkowski against Belastingsdienst
Grote ondernemingen Eindhoven

Reference for a preliminary ruling by the Finanzgericht
that court of 14
Baden-Württemberg by decision of
October 2004 in the case of Lasertec Gesellschaft für
Stanzformen mbH (formerly Riess Laser Bandstahlschnitte
GmbH) against Finanzamt Emmendingen

(Case C-493/04)

(2005/C 31/22)

(Language of the case: Dutch)

(Case C-492/04)

(2005/C 31/21)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Gerechtshof 's-Hertogen-
'S-Hertogenbosch) (Nether-
bosch (Regional Court of Appeal,
lands) of 9 June 2004, received at
the Court Registry on
1 December 2004, for a preliminary ruling in the case of L.H.
Piatkowski against Belastingsdienst Grote ondernemingen Eind-
hoven on the following question:

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Baden-Würt-
temberg (Baden-Württemberg Finance Court)
(Germany) of
14 October 2004,
the Court Registry on 1
December 2004, for a preliminary ruling in the case of Lasertec
Gesellschaft für Stanzformen mbH (formerly Riess Laser Band-
stahlschnitte GmbH) against Finanzamt Emmendingen on the
following questions:

received at

in particular the right to freedom of
Does Community law,
movement and Article 14c(b) of Regulation No 1408/71 (1)
(version applicable in 1998), preclude the Netherlands from
levying national
insurance contributions on interest income
paid by a company established in the Netherlands to a Belgian
in conjunction with
resident to whom under Article 14c(b),
Annex VII to Regulation No 1408/71, both Netherlands and
Belgian social security legislation are applicable?

1. Is Article 57(1) EC to be interpreted as meaning that the
restrictions of the movement of capital to or from third
countries which ‘exist’ on 31 December 1993 are those for
which the legislative process has already been completed by
the national legislature on that date, or those which under
the national legislation are already applicable on that date to
existing factual situations?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
the application of social security schemes to employed persons, self-
employed persons and to members of their families moving within
the Community