Case C-454/05P: Appeal brought on  22 December 2005  by the Republic of Austria against the judgment delivered on  5 October 2005  by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04
Date: 2006-03-11
Institutions: Court of Justice
Subjects: Austria, General Court (EU), appeal, environmental protection, genetically modified organism

C 60/20

EN

Official Journal of the European Union

11.3.2006

Reference for a preliminary ruling from the Finanzgericht
des Landes Brandenburg by order of that court of 23
November 2005 in Volker Ludwig v Finanzamt Lucken-
walde

agreements with providers indicated by him, but without
the subagent establishing contact with the lender?

(1) OJ L 145, p. 1.

(Case C-453/05)

(2006/C 60/39)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht des Landes
Brandenburg of 23 November 2005, received at the Court
Registry on 20 December 2005,
for a preliminary ruling
between Volker Ludwig and Finanzamt Luckenwalde on the
following questions:

1. Is

there negotiation within the meaning of Article
13B(d)(1) (1) of Directive 77/388/EEC, when a taxable
person, in some circumstances represented by a subagent,
negotiates credit for clients canvassed by it from various
providers, with which it has previously negotiated general
terms and conditions for its clients and from which it
receives a commission for the negotiation of a product,
even if, in the process, it investigates and analyses the finan-
cial situation of clients and their personal and financial
needs, or is that service a dependent service ancillary to the
principal service, which is a financial service not covered by
Article 13B(1)(d)?

2. Is it a precondition of the turnover tax exemption in respect
of negotiation of credit under Article 13B(d)(1) of Directive
77/388/EEC that

(a) there is a direct contractual relationship between the
negotiator, on the one hand, and the borrower and/or
the lender on the other, and

(b) the negotiator establishes contact not only with the
borrower, but also with the lender, and himself negoti-
ates the details of the contract with the latter,

or does the tax exemption also cover commission payments
received by a taxable person from a main agent (for which
he works as a subagent and in whose name he acts vis-à-vis
its clients) in return for those clients entering into credit

Appeal brought on 22 December 2005 by the Republic of
Austria against the judgment delivered on 5 October 2005
by the Court of First Instance of the European Commu-
nities (Fourth Chamber) in Joined Cases T-366/03 and T-
035/04

(Case C-454/05P)

(2006/C 60/40)

(Language of the case: German)

An appeal against the judgment delivered on 5 October 2005
by the Court of First Instance of the European Communities
(Fourth Chamber) in Joined Cases T-366/03 and T-235/04 was
brought before the Court of Justice of the European Commu-
nities on 22 December 2005 by the Republic of Austria, repre-
sented by Dr. Harald Dossi, acting as Agent, with an address
for service in Luxembourg.

The appellant claims that the Court should:

Instance of

1. set aside the judgment delivered on 5 October 2005 by the
Court of First
the European Communities
(Fourth Chamber) in Joined Cases T-366/03 and T-235/04,
Land Oberösterreich and Republic of Austria v Commission of the
European Communities, (1) concerning annulment of Commis-
sion Decision 2003/653/EC of 2 September 2003 relating
to national provisions on banning the use of genetically
modified organisms in the region of Upper Austria notified
by the Republic of Austria pursuant to Article 95(5) of the
EC Treaty, (2)

2. order Court of First Instance of the European Communities

to pay the costs,

3. annul the Commission's Decision, or in the alternative, refer
the case back to the Court of First Instance for judgment.

11.3.2006

EN

Official Journal of the European Union

C 60/21

Pleas in law and main arguments

The appellant contends that in adopting its contested judgment
of 5 October 2005, the Court of First Instance made a proce-
dural error which both prejudiced the interests of the Republic
of Austria and violated Community law.

According to the appellant, the content of the contested judg-
ment is concerned only with the constituent element of the
‘specific problem’; the other elements required under Article
95(5) EC were not examined further after the Court formed the
view that
there was no problem specific to the applicant
Member State. The Court did not, however, examine the ques-
tion of the ‘specific problem’ with the level of rigour that
would have been appropriate to its
the
outcome of the proceedings. This failure to make a proper
assessment of the arguments on this point amounts, first, to a
breach of the principle of the right to a fair hearing, and
secondly, to a breach of the duty to provide reasons, which in
each case constitutes a procedural irregularity.

importance for

Instance analysed the content of

The scientific risk assessment is above all of particular impor-
tance in the field of environmental protection, not least in the
application of the precautionary principle, and requires, in the
context of a procedure under Article 95(5) EC, a thorough
examination of the scientific argumentation, particularly when
there is even the slightest doubt as to whether the level of
protection envisaged by a harmonisation measure is sufficient.
However, neither the Commission nor, subsequently, the Court
the arguments
of First
advanced by the Republic of Austria or performed a thorough
examination of the necessity of the notified measure for envir-
onmental protection. The decision of the Commission and the
judgment of the Court are based on a study by the EFSA (Euro-
pean Food Safety Authority), which dealt only marginally —
and in no way in specific relation to the Land Oberösterreich
— with the key element of the Austrian submission, the ques-
tion of the co-existence of genetically modified and non-modi-
fied cultures. At no point was there any examination, in the
light of the precautionary principle, of the scientific evidence
put forward.

Finally the applicant submits that the earlier case-law of the
Court of Justice is not inconsistent with the need to conduct
proceedings in which all parties are heard in a procedure under
Article 95 EC and to this extent the legal view of the Court of
First Instance constitutes a breach of Community law. Since
failure to conduct such proceedings violates the right to a fair
hearing,
the Commission should
therefore already have been annulled on this ground.

the contested decision of

(1) OJ 2005 C 296 of 26 November 2005.
(2) OJ 2003 L 230, p. 34.

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 1 December 2005 in
Velvet & Steel Immobilien und Handels GmbH v Finan-
zamt Hamburg-Eimsbüttel

(Case C-455/05)

(2006/C 60/41)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg of 1
December 2005, received at the Court Registry on 23 December
2005, for a preliminary ruling in the proceedings between
Velvet & Steel Immobilien und Handels GmbH and Finanzamt
Hamburg-Eimsbüttel on the following question:

Is Article 13B(d)(2) of Sixth Council Directive 77/388/EEC (1) of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes to be interpreted, with respect
to the
von Verbindlichkeiten’
‘Übernahme
(assumption of obligations), as meaning that only pecuniary
obligations are to be subsumed under that concept or does that
provision also include the assumption of other obligations, for
example, service obligations?

concept of

(1) OJ 1977 L 145, p. 1.

Reference for a preliminary ruling from the Landgericht
Wiesbaden by order of that court of 23 November 2005
in Schutzverband der Spirituosen-Industrie e.V. v Diageo
Deutschland GmbH

(Case C-457/05)

(2006/C 60/42)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Landgericht Wiesbaden
(Wiesbaden Regional Court) (Germany) of 23 November 2005,
received at the Court Registry on 27 December 2005, for a
preliminary ruling in the proceedings between Schutzverband
der Spirituosen-Industrie e.V. and Diageo Deutschland GmbH
on the following questions: