Judgment of the Court (First Chamber) of  24 November 2005  in Case C-366/04: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg in Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg (Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislative provision prohibiting the sale of non-packaged confectionery from vending machines — Hygiene of foodstuffs)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: automatic vending machine, confectionery product, food hygiene, food substitute, foodstuff, foodstuffs legislation, interpretation of the law, marketing restriction, sugar

C 36/14

EN

Official Journal of the European Union

11.2.2006

1. The provisions of Articles 13B(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 94/5/EC of 14 February 1994 are
to be construed as meaning that they do not preclude a national
law which imposes value added tax on transactions by which a
taxable person, after having used them for the purposes of its busi-
ness, resells goods on the acquisition of which, by virtue of Article
17(6), value added tax did not become deductible, even where that
acquisition, made from taxable persons who could not declare
value added tax, did not, for that reason, give rise to a right to
deduct.

2. Article 26aA(e) of Sixth Directive 77/388, as amended by Direc-
tive 94/5,
is to be construed as meaning that an undertaking
which, in the normal course of its business, resells cars which it
had purchased second-hand with a view to using them for the
purposes of its business of sale and leaseback and for which the
resale is not, at the time of the purchase of the second-hand
the principal objective but only its secondary objective,
goods,
ancillary to that of leasing, can be considered to be a ‘taxable
dealer’ within the meaning of that provision.

(1) OJ C 228 of 11.9.2004.

burg (Independent Administrative Chamber of Salzburg)
(Austria), made by decision of 16 August 2004, received at the
Court on 23 August 2004, in the proceedings between Georg
Schwarz and the Bürgermeister der Landeshauptstadt Salz-
burg — the Court (First Chamber), composed of P. Jann, Presi-
dent of
Juhász
(Rapporteur), M. Ilešič and E. Levits,
Judges; L.A. Geelhoed,
Advocate General; R. Grass, Registrar, gave a judgment on 24
November 2005, the operative part of which is as follows:

J.N. Cunha Rodrigues, E.

the Chamber,

It is not contrary to Articles 28 EC, 30 EC and Article 7 of Council
Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs
for a provision of national law, adopted before the entry into force of
that directive, to prohibit the offer for sale from vending machines of
sugar confectionery or products made using sugar substitutes, without
wrapping.

(1) OJ C 262 of 23.10.2004.

JUDGMENT OF THE COURT

(Sixth Chamber)

JUDGMENT OF THE COURT

of 17 November 2005

(First Chamber)

of 24 November 2005

in Case C-366/04: Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat Salzburg in Georg
Schwarz v Bürgermeister der Landeshauptstadt Salz-
burg (1)

(Free movement of goods — Quantitative restrictions —
Measures having equivalent effect — National
legislative
provision prohibiting the sale of non-packaged confectionery
from vending machines — Hygiene of foodstuffs)

(2006/C 36/26)

(Language of the case: German)

In Case C-366/04: reference for a preliminary ruling under
Article 234 EC from the Unabhängiger Verwaltungssenat Salz-

in Case C-378/04: Commission of the European Commu-
nities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations — Risks
related to exposure to carcinogens and mutagens — Failure
to transpose within the prescribed period)

(2006/C 36/27)

(Language of the case: German)

In Case C-378/04 Commission of the European Communities
(Agents: D. Martin and V. Kreuschitz) v Republic of Austria
(Agent: C. Pesendorfer) — action under Article 226 EC for
failure to comply with obligations, brought on 2 September
2004 — the Court, composed of A. Borg Barthet (Rapporteur)
acting as President of the Sixth Chamber, U. Lõhmus and A. Ó
Caoimh, Judges; F.G. Jacobs, Advocate General; R. Grass, Regis-
trar, gave a judgment on 17 November 2005, in which it: