Case C-18/05: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Napoli by order of that court of 15 July 2004 in Salus S.p.A v Agenzia Entrate Ufficio Napoli 4
Date: 2005-04-16
Institutions: Court of Justice
Subjects: VAT, distributive trades, interpretation of the law, national implementing measure, provision of services, tax evasion, tax exemption

16.4.2005

EN

Official Journal of the European Union

C 93/5

the

that

in deciding

authority used its discretionary powers in a clearly erroneous
manner. The Court also carried out an inaccurate assessment of
the interest of the service and failed to take the welfare of offi-
cials into account. The Court also misapplied the principle of
proportionality
contested decision
complied with the principle, although the decision was neither
an appropriate measure, nor the least restrictive one. The Court
made a further error in assessing the equivalence or compar-
ability of the new position with the former post. In fact, if the
Court's reasoning were accepted, every transfer related to the
current grade would comply with the principle of assignment
to an equivalent post. Finally, the Court failed to indicate which
elements it took into account when it assessed the non-material
damage suffered by the appellant.

The Court also made a number of errors in law. First of all, it
exempted the transfer decision from the duty to state reasons
in considering it a mere measure of internal organisation, even
though that duty has been held to constitute a general principle
of law. Secondly, the Court made an error of law in finding
there to be no infringement of the right to a fair hearing to the
detriment of the appellant. The Court also made an error of
law in failing to make a clear statement on the scope of the
right to freedom of expression, on which the appellant should
have been able to rely in this instance. Finally, the Court made
an error of law concerning the application of the rights of
defence, in particular the right to be heard before the transfer
decision was made.

1. Does the exemption under Article 13B(c) of Sixth Council
Directive 77/388/EEC (1) of 17 May 1977 refer to input
VAT paid on the acquisition of goods or services used for
exempted activities or rather to cases in which a taxable
person who has acquired goods intended for such activities
subsequently sells those goods to other taxable persons?

2. Is that provision sufficiently precise and unconditional to be

directly effective in the national legal system?

3. For the purposes of the direct applicability of the directive,
what is the effect of the requirement in the first paragraph
of Article 13B whereby,
in implementing Article 13B(c),
Member States are to lay down conditions for 'preventing
any possible evasion, avoidance or abuse?

(1) OJ 1977 L 145 of 13.06.1977, p. 1.

Action brought on 20 January 2005 by the Commission of
the Kingdom of
the European Communities against

Denmark

(Case C-19/05)

(2005/C 93/10)

Reference for a preliminary ruling from the Commissione
Tributaria Provinciale di Napoli by order of that court of
15 July 2004 in Salus S.p.A v Agenzia Entrate Ufficio
Napoli 4

(Language of the case: Danish)

(Case C-18/05)

(2005/C 93/09)

An action against
the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
20 January 2005 (fax 14.01.) by the Commission of the Euro-
pean Communities, represented by N. B. Rasmussen and G.
Wilms, with an address for service in Luxembourg.

(Language of the case: Italian)

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

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria
Provinciale di Napoli (Italy) of 15 July 2004, received at the
Court Registry on 20 January 2005, for a preliminary ruling in
the proceedings between Salus S.p.A and Agenzia Entrate
Ufficio Napoli 4 on the following questions:

— declare that, by failing to pay the Commission the sum of
DKK 18 687 475 as own resources, together with default
interest from 27 July 2000, the Kingdom of Denmark has
failed to fulfil its obligations under Community law, in par-
ticular Article 10 EC and Articles 2 and 8 of Council Deci-
sion 94/728/EC, Euratom (1) of 31 October 1994 on the
system of the European Communities' own resources;

— order the Kingdom of Denmark to pay the costs.