Judgment of the Court (Third Chamber) of 16 June 2005 in Case C-456/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 98/44/EC — Legal protection of biotechnological inventions — Admissibility — Failure to transpose — Articles 3(1), 5(2), 6(2) and 8 to 12)
Date: 2005-09-03
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, biotechnology, invention, patent law

C 217/14

EN

Official Journal of the European Union

3.9.2005

1. The theft of goods does not constitute a supply of goods for
consideration within the meaning of Article 2 of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the Member States relating to turnover taxes —
the laws of
Common system of value added tax: uniform basis of assessment,
and therefore cannot as such be subject to value added tax. The
circumstance that goods are,
issue in the main
proceedings, subject to excise duty does not affect that conclusion.

like those at

Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a
judgment on 16 June 2005, in which it:

1. Declares that, by having failed to adopt the laws, regulations and
administrative provisions necessary to comply with Articles 3(1),
5(2), 6(2) and 8 to 12 of Directive 98/44/EC of the European
Parliament and of the Council of 6 July 1998 on the legal protec-
tion of biotechnological inventions, the Italian Republic has failed
to fulfil its obligations under Article 15 of that directive;

2. An authorisation to apply measures facilitating monitoring of the
charging of value added tax, granted to a Member State on the
basis of Article 27(5) of the Sixth Directive 77/388, does not
empower that State to subject transactions to that tax other than
those set out in Article 2 of the Directive. Such an authorisation
thus cannot provide a legal basis for national legislation subjecting
to value added tax the theft of goods from a tax warehouse.

2. Dismisses the action as to the remainder;

3. Orders the Italian Republic to bear all the costs.

(1) OJ C 304 of 13.12.2003.

(1) OJ C 7 of 10.1.2004.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 16 June 2005

(First Chamber)

of 26 May 2005

in Case C-456/03: Commission of the European Commu-
nities v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
98/44/EC — Legal protection of biotechnological inventions
— Admissibility — Failure to transpose — Articles 3(1),
5(2), 6(2) and 8 to 12)

in Case C-465/03: Reference for a preliminary ruling from
the Unabhängiger Finanzsenat, Außenstelle Linz Kretz-
technik AG v Finanzamt Linz (1)

(Sixth VAT Directive — Supplies for consideration — Share
issue — Admission of a company to a stock exchange —
Deductibility of VAT)

(2005/C 217/26)

(Language of the case: Italian)

(2005/C 217/27)

(Language of the case: German)

In Case C-456/03, Commission of the European Communities
(Agent: K. Banks) v Italian Republic (Agent:
I.M. Braguglia,
assisted by P. Gentili, avvocato dello Stato) — action under
Article 226 EC for failure to fulfil obligations, brought on 27
October 2003 — the Court (Third Chamber), composed of A.
Rosas, President of the Chamber, J.P. Puissochet, S. von Bahr,
U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; D. Ruiz-

In Case C-465/03: reference for a preliminary ruling under
Article 234 EC from the Unabhängiger Finanzsenat, Außen-
stelle Linz (Austria), made by decision of 20 October 2003,
received at the Court on 5 November 2003, in the proceedings
between Kretztechnik AG and Finanzamt Linz, the Court (First
Chamber), composed of P. Jann, President of the Chamber, K.
Lenaerts (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E.
Levits,
Jacobs, Advocate General; M.-F. Contet,
Principal Administrator, for the Registrar, gave a judgment on
26 May 2005, the operative part of which is as follows:

Judges; F.G.