Judgment of the Court (Second Chamber) of 3 March 2005 in Case C-172/03 Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v Finanzamt Innsbruck (VAT — Exemption for medical care provided in the exercise of the profession of medical practitioner — Adjustment of deductions)
Date: 2005-04-30
Institutions: Court of Justice
Subjects: State aid, VAT, interpretation of the law, physician, tax exemption

30.4.2005

EN

Official Journal of the European Union

C 106/5

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Joined Cases C-21/03 and C-34/03 (reference for a preli-
minary ruling from the Conseil d'État): Fabricom SA v
État belge (1)

(Public procurement — Works, supplies and services —
Water, energy, transport and telecommunications sectors —
Prohibition on participation in a procedure of submission of
a tender by a person who has contributed to the development
of the works, supplies or services concerned)

(2005/C 106/08)

(Language of the case: French)

In Joined Cases C-21/03 and C-34/03: reference for a preli-
minary ruling under Article 234 EC from the Conseil d'État
(Belgium), made by decision of 27 December 2002, received at
in the
the Court on 29 and 22 January 2003, respectively,
proceedings pending before that court between Fabricom SA
and État belge — the Court (Second Chamber) composed of
C.W.A. Timmermans, President of the Chamber (Rapporteur),
C. Gulmann, J.-P. Puissochet, N. Colneric and J.N. Cunha Rodri-
gues, Judges; P. Léger, Advocate General; R. Grass, Registrar,
gave a judgment on 3 March 2005, the operative part of which
is as follows:

and

thereof,

1. Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service contracts,
as amended by European Parliament and Council Directive
97/52/EC of 13 October 1997, and, more particularly, Article
3(2) thereof, Council Directive 93/36/EEC of 14 June 1993
coordinating procedures for the award of public supply contracts,
as amended by Directive 97/52, and, more particularly, Article
5(7) thereof, Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public
works contracts, as amended by Directive 97/52, and, more parti-
cularly, Article 6(6)
also Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement proce-
dures of entities operating in the water, energy, transport and tele-
communications sectors, as amended by European Parliament and
Council Directive 98/4/EC of 16 February 1998, and, more
particularly, Article 4(2) thereof, preclude a rule such as that laid
down in Article 25 of the Royal Decree of 25 March 1999
amending the Royal Decree of 10 January 1996 on public works,
supply and service contracts in the water, energy, transport and
telecommunications sectors, and Article 32 of the Royal Decree of
25 March 1999 amending the Royal Decree of 8 January 1996
on public works, supply and service contracts and on the award of
public contracts, whereby a person who has been instructed to
carry out research, experiments, studies or development in connec-
tion with a public works, supplies or services contract
is not
permitted to apply to participate in or to submit a tender for those
works, supplies or services and where that person is not given the

opportunity to prove that, in the circumstances of the case, the
experience which he has acquired was not capable of distorting
competition.

2. Council Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of
public supply and public works contracts and, more particularly,
Articles 2(1)(a) and 5 thereof, and Council Directive 92/13/EEC
of 25 February 1992 coordinating the laws, regulations and
administrative provisions relating to the application of Community
rules on the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors and, more
particularly, Articles 1 and 2 thereof, preclude the contracting
entity from refusing, until the end of the procedure for the exami-
nation of tenders, to allow an undertaking connected with any
person who has been instructed to carry out research, experiments,
studies or development
in connection with works, supplies or
services to participate in the procedure or to submit a tender, even
though, when questioned on that point by the awarding authority,
that undertaking states that it has not thereby obtained an unfair
advantage capable of distorting the normal conditions of competi-
tion.

(1) OJ C 55 of 08.03.2003.
OJ C 70 of 22.03.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Case C-172/03 Reference for a preliminary ruling from
the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v
Finanzamt Innsbruck (1)

(VAT — Exemption for medical care provided in the exercise
of the profession of medical practitioner — Adjustment of
deductions)

(2005/C 106/09)

(Language of the case: German)

In Case C-172/03: reference for a preliminary ruling under
Article 234 EC from the Verwaltungsgerichtshof
(Austria),
made by decision of 31 March 2003, received at the Court on
14 April 2003, in the proceedings pending before that court
between Wolfgang Heiser and Finanzamt Innsbruck — the
Court: (Second Chamber) composed of C.W.A. Timmermans
the Chamber, C. Gulmann,
(Rapporteur),

President of

C 106/6

EN

Official Journal of the European Union

30.4.2005

R. Schintgen, J. Makarczyk and J. Klučka, Judges; A. Tizzano,
Advocate General, K. Sztranc, Administrator, for the Registrar,
gave a judgment on 3 March 2005, the operative part of which
is as follows:

were not lawfully introduced into the customs territory of the Com-
munity if, in the documents lodged with the customs authorities,
the goods were wrongly designated.

Article 92 of the Treaty (now, after amendment, Article 87 EC) must
be interpreted as meaning that a rule, such as that laid down by Para-
graph XIV(3) of Federal Law 21/1995, as amended by Federal Law
756/1996, providing that the changeover for medical practitioners
from taxable to exempt status for the purposes of VAT does not, in
relation to goods that continue to be used in the business, entail the
reduction of input tax already deducted that is prescribed by Article
20 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating to turn-
over taxes — Common system of value added tax: uniform basis of
assessment, must be classified as State aid.

(1) OJ C 158 of 5.7.2003.

2. The customs debt in respect of goods presented to customs and
declared under an incorrect designation is based on Article 202 of
Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code.

3. It is for the national court to establish, in the light of the circum-
stances of the main proceedings, whether the person who lodged
the summary declaration or the customs declaration was, because
he stated an incorrect designation, responsible for the unlawful
introduction of the goods. If such is not the case, it is for that
court to consider whether, by that action, the person participated
in the introduction of the goods whilst he was or should reason-
ably have been aware that it was unlawful.

(1) OJ C 158 of 5.7.2003.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 3 March 2005

in Case C-195/03 (reference for a preliminary ruling from
the Hof van Beroep te Antwerpen): Ministerie van
Financiën v Merabi Papismedov and Others (1)

(Community Customs Code — Presentation of goods to
customs — Meaning — Cigarettes declared under
the
description ‘cookware’ — Incurrence of the customs debt on
importation — Debtor of the customs debt)

(2005/C 106/10)

(Language of the case: Dutch)

In Case C-195/03: reference for a preliminary ruling under
Article 234 EC from the Hof van Beroep te Antwerpen
(Belgium), by decision of 7 May 2003, received at the Court on
12 May 2003, in the proceedings pending before that court
between Ministerie van Financiën and Merabi Papismedov and
intervening parties: KBC Lease Belgium NV, Volvo
Others,
(Sixth Chamber)
Truck Finance Belgium NV — the Court
composed of J.-P. Puissochet, acting as President of the Sixth
Chamber, S. von Bahr and U. Lõhmus (Rapporteur), Judges; J.
Kokott, Advocate General, R. Grass, Registrar, gave a judgment
on 3 March 2005, the operative part of which is as follows:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-279/03: Commission of the European Commu-
nities v Implants (International) Ltd (1)

(Arbitration clause — Reimbursement

of an advance

payment — Default interest — Default proceedings)

(2005/C 106/11)

(Language of the case: English)

In Case C-279/03, an action under Article 238 EC brought on
26 June 2003, Commission of
the European Communities
(Agents: R. Lyal and C. Giolito) v Implants (International) Ltd,
established in Cleveland (United Kingdom) — the Court (Fifth
Chamber), composed of R. Silva de Lapuerta, President of the
Chamber, C. Gulmann and J. Klučka (Rapporteur), Judges; P.
Léger, Advocate General; R. Grass, Registrar, gave a judgment
on 24 February 2005, in which it:

1. Orders Implants (International) Ltd to pay to the Commission of
of

European Communities

the
EUR 284 000, together with default interest:

sum due

principal

the

1. Goods presented to customs, for which a summary declaration was
lodged and an external Community transit document validated,

— at the rate of 4,8 % per annum from 31 August 2002 until

31 December 2002;