Judgment of the Court (First Chamber) of 15 September 2005 in Case C-58/04 Reference for a preliminary ruling from the Bundesfinanzhof: Antje Köhler v Finanzamt Düsseldorf-Nord (Sixth VAT Directive — Place of taxable transactions — Supplies of goods effected on board cruise ships — Transport effected within the Community — Exclusion of tax where a stop is made in a third territory — Scope of the exclusion)
Date: 2005-10-29
Institutions: Court of Justice
Subjects: interpretation of the law, maritime law, maritime transport, right to stopover, vessel

29.10.2005

EN

Official Journal of the European Union

C 271/7

JUDGMENT OF THE COURT

(First Chamber)

of 8 September 2005

in Case C-40/04: (Reference for a preliminary ruling from
the Korkein oikeus) Syuichi Yonemoto (1)

risks to safety or health, provided that such requirements do
not amount to making the importer subject to the obligation
to verify himself that the machinery complies with the essential
health and safety requirements laid down by that directive.

3. Article 10 EC and the third paragraph of Article 249 EC must be
interpreted as not precluding a Member State from imposing crim-
inal penalties to ensure compliance with the obligations laid down
by Directive 98/37, provided that those penalties are analogous to
those applicable to infringements of national
law of a similar
nature and importance and are,
in any event, effective, propor-
tionate and deterrent.

(Approximation of laws — Machines — Directive 98/37/EC
— Compatibility of national law requiring the importer to
verify that machinery accompanied by an EC declaration of
conformity is safe)

(1) OJ C 85, 03.04.2004.

(2005/C 271/12)

(Language of the case: Finnish)

In Case C-40/04: reference for a preliminary ruling under
Article 234 EC from the Korkein oikeus ((Finland), made by
order of 30 January 2004, received at the Court on 3 February
2004, in the criminal proceedings against Syuichi Yonemoto
— the Court (First Chamber), composed of P. Jann, President of
the Chamber, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur),
E.
Judges; L.A. Geelhoed, Advocate
General, K. Sztranc, Administrator, for the Registrar, gave a
judgment on 8 September 2005, the operative part of which is
as follows:

Juhász and M.

Ilešič,

1. Directive 98/37/EC of

the European Parliament and of

the
Council of 22 June 1998 on the approximation of the laws of the
Member States relating to machinery precludes the application of
national provisions which require the importer in a Member State
of a machine manufactured in another Member State, bearing the
CE marking and accompanied by an EC declaration of conformity,
to ensure that that machinery meets the essential health and safety
requirements laid down by that directive.

2. That directive does not preclude the application of national provi-
sions which require the importer in a Member State of a machine
manufactured in another Member State to:

JUDGMENT OF THE COURT

(First Chamber)

of 15 September 2005

in Case C-58/04 Reference for a preliminary ruling from
the Bundesfinanzhof: Antje Köhler v Finanzamt Düssel-
dorf-Nord (1)

(Sixth VAT Directive — Place of taxable transactions —
Supplies of goods effected on board cruise ships — Transport
effected within the Community — Exclusion of tax where a
stop is made in a third territory — Scope of the exclusion)

(2005/C 271/13)

(Language of the case: German)

— ensure, before the machinery is delivered to the user, that it
bears the CE marking and is accompanied by the EC declara-
tion of conformity translated into the language or one of the
languages of the Member State into which the machinery is
imported, and instructions translated into the language or
languages of that State;

— provide, after the machinery has been delivered to the user, all
appropriate
information and cooperation to the national
inspection authorities if it transpires that that machinery poses

In Case C-58/04: reference for a preliminary ruling under
Article 234 EC from the Bundesfinanzhof (Germany), made by
decision of 23 October 2003, received at the Court on 11
February 2004, in the proceedings pending before that court
between Antje Köhler and Finanzamt Düsseldorf-Nord — the
Court (First Chamber) composed of P. Jann, President of the
Chamber, N. Colneric, K. Schiemann, E. Juhász and E. Levits,
Judges; M. Poiares Maduro, Advocate General, M. Ferreira, Prin-
cipal Administrator, gave a judgment on 15 September 2005,
the operative part of which is as follows:

C 271/8

EN

Official Journal of the European Union

29.10.2005

Stops made by a ship in the ports of a third country during which
passengers may leave the ship, even for a short period, are 'stops in a
third territory' within the meaning of Article 8(1)(c) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment, as amended
by Council Directive 92/111/EEC of 14 December 1992 amending
Directive 77/388/EEC and introducing simplification measures with
regard to value added tax.

(1) OJ C 106 of 30. 04. 2004.

JUDGMENT OF THE COURT

(Second Chamber)

of 8 September 2005

in Case C-129/04 Reference for a preliminary ruling from
the Conseil d'État: Espace Trianon SA, Société wallonne
de location-financement SA (Sofibail) v Office communau-
taire et régional de la formation professionnelle et de l'em-
ploi (FOREM) (1)

(Public procurement — Directive 89/665/EEC — Review
procedures concerning the award of public contracts —
Persons to whom review procedures must be available —
Tender by a consortium — Prohibition against members of a
consortium bringing an action individually — Meaning of
'interest in obtaining a public contract')

(2005/C 271/14)

(Language of the case: French)

In Case C-129/04: reference for a preliminary ruling under
Article 234 EC from the Conseil d'État (Belgium), made by deci-
sion of 25 February 2004, received at the Court on 9 March
2004, in the proceedings between Espace Trianon SA, Société
wallonne de location-financement SA (Sofibail) and Office
communautaire et régional de la formation professionnelle et
de
(Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber,
C. Gulmann (Rapporteur), R. Schintgen, G. Arestis and J.
Judges; C. Stix-Hackl, Advocate General; K. Sztranc,
Klučka,
Administrator,
the Registrar, gave a judgment on 8
September 2005, the operative part of which is as follows:

(FOREM) — the Court

l'emploi

for

1. Article 1 of Council Directive 89/665/EEC of 21 December
1989 on the coordination of the laws, regulations and adminis-
trative provisions relating to the application of review procedures
to the award of public supply and public works contracts, as
amended by Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the award of public
service contracts is to be interpreted as not precluding national law
from providing that only the members of a consortium without
legal personality which has participated, as such, in a procedure
for the award of a public contract and has not been awarded that
contract, acting together, may bring an action against the decision
awarding the contract and not just one of its members individu-
ally.

2. The same is true if all the members of such a consortium act
together but the application of one of its members is held inadmis-
sible.

(1) OJ C 106 of 30. 04. 2005.

JUDGMENT OF THE COURT

(Fourth Chamber)

of 8 September 2005

in Case C-278/04: Commission of the European Commu-
nities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations — Directives
2001/88/EC and 2001/93/EC — Animal health — Protection
of pigs — Failure to transpose)

(2005/C 271/15)

(Language of the case: German)

In Case C-278/04 Commission of the European Commu-
nities (Agents: G. Braun and A. Bordes) v Federal Republic of
Germany (Agent: A. Tiemann) — action under Article 226 EC
for failure to fulfil obligations, brought on 29 June 2004 — the
Court (Fourth Chamber), composed of K. Lenaerts, President of
the Chamber, M. Ilešič and E. Levits (Rapporteur), Judges; M.
Poiares Maduro, Advocate General; R. Grass, Registrar, gave a
judgment on 8 September 2005, in which it: