Judgment of the Court (Fourth Chamber) of  8 December 2005  in Case C-445/04: Possehl Erzkontor GmbH v Hauptzollamt Duisburg (Common Customs Tariff — Tariff classification — Subheading 2519 90 10 — Fused magnesia obtained by fusion in an electric arc furnace of magnesite that has previously been caustic-burned — Fused magnesia)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: Combined Nomenclature, chemical product, interpretation of the law, mining product, tariff nomenclature

11.2.2006

EN

Official Journal of the European Union

C 36/15

the laws,

1. Declares that, by failing to adopt

regulations and
administrative provisions necessary to fully transpose Council
Directive 1999/38/EC of 29 April 1999 amending for the
second time Directive 90/394/EEC on the protection of workers
from the risks related to exposure to carcinogens at work and
extending it to mutagens, the Republic of Austria has failed to
fulfil its obligations under that directive;

2. Orders the Republic of Austria to pay the costs.

(1) OJ C 262 of 23.10.2004

JUDGMENT OF THE COURT

(Third Chamber)

of 1 December 2005

in Joined Cases C-394/04 and C-395/05, References for a
preliminary ruling from the Simvoulio tis Epikratias, Diag-
nostiko & Therapeftiko Kentro Athinon-Ygeia AE v
Ipourgos Ikonomikon (1)

(Sixth VAT Directive — Article 13A(1)(b) — Exemptions —
Activities closely related to hospital and medical care —
Provision of telephone services and hiring out of televisions
to in-patients — Provision of beds and meals to persons
accompanying in-patients)

(2006/C 36/28)

(Language of the case: Greek)

In Joined Cases C-394/04 and C-395/04: references for a preli-
minary ruling under Article 234 EC from the Simvoulio tis
Epikratias (Greece), made by decisions of 16 June 2004,
received at the Court on 17 September 2004, in the proceed-
ings between Diagnostiko & Therapeftiko Kentro Athinon-
Ygeia AE and Ipourgos Ikonomikon — 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; P. Léger, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, gave a judgment on
1 December 2005, the operative part of which is as follows:

1. The supply of telephone services and the hiring out of televisions to
in-patients by persons covered by Article 13A(1)(b) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmo-

nisation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
assessment, and the supply by those persons of beds and meals to
people accompanying in-patients do not amount, as a general
rule, to activities closely related to hospital and medical care within
the meaning of that provision. It can be otherwise only if those
supplies are essential to achieve the therapeutic objectives sought
by the hospital and medical care and their basic purpose is not to
obtain additional income for the supplier by carrying out transac-
tions which are in direct competition with those of commercial
enterprises liable for value added tax.

2. It is for the referring court, taking account of all of the specific
facts in the litigation before it and, if appropriate, of the content
of the medical prescriptions drawn up for the patients concerned,
to determine whether the services supplied satisfy those conditions.

(1) OJ C 273 of 06.11.2004.

JUDGMENT OF THE COURT

(Fourth Chamber)

of 8 December 2005

in Case C-445/04: Possehl Erzkontor GmbH v Hauptzoll-
amt Duisburg (1)

(Common Customs Tariff — Tariff
classification —
Subheading 2519 90 10 — Fused magnesia obtained by
fusion in an electric arc furnace of magnesite that has
previously been caustic-burned — Fused magnesia)

(2006/C 36/29)

(Language of the case: German)

In Case C-445/04: Reference for a preliminary ruling under
Article 234 EC from the Finanzgericht (Finance Court) Düssel-
dorf
(Germany), made by decision of 13 October 2004,
received at the Court on 21 October 2004, in the proceedings
Possehl Erzkontor GmbH v Hauptzollamt Duisburg — the
Court (Fourth Chamber), composed of K. Lenaerts, President of
the Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; A.
Tizzano, Advocate General; H. von Holstein, Deputy Registrar,
gave a judgment on 8 December 2005, the operative part of
which is as follows:

C 36/16

EN

Official Journal of the European Union

11.2.2006

Fused magnesia such as that at issue in the main proceedings comes
under subheading 2519 90 10 of the Combined Nomenclature in
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987
on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulations (EC) Nos
3115/94 of 20 December 1994, 1359/95 of 13 June 1995,
2448/95 of 10 October 1995 and 3009/95 of 22 December
1995.

(1) OJ C 314 of 18. 12. 2004.

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 82 of 02.04.2005.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 8 December 2005

in Case C-38/05: Commission of the European Commu-
nities v Ireland (1)

(Failure of a Member State to fulfil obligations — Regulation
(EEC) No 2847/93 — Control system within the fisheries
sector — Information on types and quantities of fish landed
and on fishing effort)

(2006/C 36/31)

(Language of the case: English)

In Case C-38/05, Commission of the European Commu-
nities (Agent: B. Doherty) v Ireland (Agent: D.J. O'Hagan,
assisted by A. Schuster and E. Fannon, Barristers) — action
under Article 226 EC for failure to fulfil obligations, brought
on 1 February 2005 — the Court (Fifth Chamber), composed
of J. Makarczyk, President of the Chamber, R. Schintgen and
P. Kūris (Rapporteur),
Judges; M. Poiares Maduro, Advocate
General; R. Grass, Registrar, gave a judgment on 8 December
2005, in which it:

1. Declares that, by failing to communicate the data required under
Articles 15(4) and 18(1) and the first and third indents of Article
19i of Council Regulation (EEC) No 2847/93 of 12 October
1993 establishing a control system applicable to the common
fisheries policy, as amended by Council Regulation (EC) No 2635/
97 of 18 December 1997, Ireland has failed to fulfil its obliga-
tions under those provisions;

2. Orders Ireland to pay the costs.

(1) OJ C 82, 02.04.2005.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-22/05: Commission of the European Commu-
nities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations — Directive
93/104/EC — Working conditions — Organisation of
working time — Failure to transpose within the prescribed
period)

(2006/C 36/30)

(Language of the case: French)

In Case C-22/05 Commission of the European Communities
(Agents: G. Rozet and N. Yerrell) v Kingdom of Belgium
(Agent: M. Wimmer) — action under Article 226 EC for failure
to comply with obligations, brought on 25 January 2005 —
the Court (Sixth Chamber), composed of J.-P. Puissochet acting
as President of the Sixth Chamber, S. von Bahr and A. Borg
Barthet (Rapporteur), Judges; J. Kokott, Advocate General; R.
Grass, Registrar, gave a judgment on 17 November 2005, in
which it:

1. Declares that, by excluding people working in a fairground under-
taking from the scope of
transposing
Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organisation of working time, the Kingdom
of Belgium has failed to fulfil its obligations under Article 1(3)
and Article 17 of that directive;

the national measures