Judgment of the Court (Sixth Chamber) of  17 November 2005  in Case C-378/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Risks related to exposure to carcinogens and mutagens — Failure to transpose within the prescribed period)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, carcinogenic substance, dangerous substance, health risk, national implementing measure, occupational health, occupational safety, safety standard

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:

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: