Case C-19/05: Action brought on 20 January 2005 by the Commission of the European Communities against the Kingdom of Denmark
Date: 2005-04-16
Institutions: Court of Justice
Subjects: Denmark, European Commission, Member States' contribution, action for failure to fulfil an obligation, customs duties, customs regulations, own resources

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.

C 93/6

EN

Official Journal of the European Union

16.4.2005

Pleas in law and main arguments

— whether it

is further compatible with Council Directive

83/189/EEC (2) and Council Directive 88/182/EEC (3).

The amount referred to in the application represents the duty
that the Danish customs authorities omitted to collect in the
period 1994-1997 from an undertaking wrongly permitted by
the said authorities to import certain goods at zero rate. That
permission was given as concerning goods intended for incor-
poration in or for fitting to or equipping ships, boats or other
vessels
in accordance with Council Regulation (EEC) No
2658/87 (2) of 23 July 1987 on the tariff and statistical nomen-
clature and on the Common Customs Tariff, Annex 1, Section
II. The goods were, however, intended for the manufacture of
containers and could not, as was later acknowledged by the
Danish authorities, be covered by the said provision.

The Danish authorities have unlawfully failed to make the said
amount available to the Commission as own resources. The
claims made in this connection correspond to those made by
the Commission in its application against Denmark in Case C-
392/02 (3).

(1) OJ L 293 of 12.11.1994, p. 9.
(2) OJ L 256 of 7.09.1987, p.1.
(3) OJ C 31 of 8.02.2003, p. 4.

Reference for a preliminary ruling from the Tribunale
Civile e Penale di Forlì by order of that court of 14
December 2004 in the criminal proceedings against K.J.W.
Schwibbert

(Case C-20/05)

(2005/C 93/11)

(Language of the case: Italian)

(Italy) of 14 December 2004, received at

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale Civile e Penale di
Forlì
the Court
Registry on 21 January 2005, for a preliminary ruling in the
criminal proceedings pending against K.J.W. Schwibbert on the
following questions:

(1) OJ 1992 L 346 of 27.11.1992, p. 61.
(2) OJ 1983 L 109 of 26.04.1983, p. 8.
(3) OJ 1988 L 81 of 26.03.1988, p. 75.

Reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven (Administrative Court for
Trade and Industry) by order of that court of 18 January
2005 in G.J. Dokter, Maatschap Van den Top and
W. Boekhout v Minister van Landbouw, Natuur en Voed-
selkwaliteit

(Case C-28/05)

(2005/C 93/12)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the College van Beroep voor het
bedrijfsleven (Administrative Court for Trade and Industry) (the
Netherlands) of 18 January 2005, received at the Court Registry
on 28 January 2005, for a preliminary ruling in the proceed-
ings between G.J. Dokter, Maatschap Van den Top and W.
Boekhout and Minister van Landbouw, Natuur en Voedselkwa-
liteit (Minister for Agriculture, Nature and Food Quality) on the
following questions:

1. Does the obligation on Member States under the first indent
of Article 11(1) of Directive 85/511/EEC, (1)
read in
conjunction with the second indent of Article 13(1) thereof,
to ensure that laboratory testing to detect the presence of
FMD is carried out by a laboratory listed in Annex B to
Directive 85/511/EEC have direct effect?

2.

(a) Must Article 11(1) of Directive 85/511/EEC be inter-
preted as meaning that
legal consequences must be
attached to the fact that the presence of FMD is found
by a laboratory which is not listed in Annex B to Direc-
tive 85/511/EEC?

(b) If the answer to Question 2a is in the affirmative:

— whether the affixing of the distinctive sign SIAE [società
italiana degli autori ed editori] is compatible with Council
Directive 92/100/EEC (1) on rental right and lending right
and on certain rights related to copyright in the field of
intellectual property, and Articles 3 EC and 23 EC to 27
EC;

Is the purpose of Article 11(1) of Directive 85/511/EEC
to protect the interests of individuals, such as the appel-
lants in the main proceedings? If not, can individuals,
such as the appellants in the main proceedings, plead
possible failure to fulfil the obligations which this provi-
sion places on the authorities of the Member States?