Case C-72/05: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Finanzgericht München, Germany) — Hausgemeinschaft Jörg und Stefanie Wollny v Finanzamt Landshut (Sixth VAT Directive — Article 11A(1)(c) — Use of property forming part of the assets of a business for private purposes by a taxable person — Treatment of that use as a supply of services for consideration — Determination of the taxable amount — Definition of full cost to the taxable person of providing those services)
Date: 2006-11-18
Institutions: Court of Justice
Subjects: VAT, acquisition of property, building, housing, interpretation of the law, tax exemption, type of business

C 281/12

EN

Official Journal of the European Union

18.11.2006

Judgment of the Court (Second Chamber) of 7 September
2006 (reference for a preliminary ruling from the Cour de
cassation — France) — Laboratoires Boiron SA v Union de
recouvrement des cotisations de sécurité sociale et d'allo-
cations familiales (Urssaf) de Lyon, assuming the rights
and obligations of the Agence centrale des organismes de
sécurité sociale (ACOSS),

(Case C-526/04) (1)

(State aid — Articles 87 and 88(3) CE — Tax on direct sales
of medicines — Applicable to pharmaceutical
laboratories
rather than wholesale distributors — Prohibition on imple-
menting a non-notified aid measure — Possibility of pleading
that an aid measure is unlawful in order to obtain reimburse-
ment of a charge — Compensation for discharging public
service obligations imposed on wholesale distributors —
Burden of proof in relation to overcompensation — Detailed
rules laid down by national law — Prohibition on making
reimbursement of a charge practically impossible or exces-
sively difficult)

(2006/C 281/18)

Language of the case: French

2. Community law does not preclude the application of rules of
national law which make reimbursement of a mandatory contribu-
tion such as that provided for in Article 12 of Law No 97-1164
subject to proof by the claimant seeking reimbursement that the
advantage derived by wholesale distributors from their not being
liable to pay that contribution exceeds the costs which they bear in
discharging the public service obligations imposed on them by the
national rules and, in particular, that at least one of the conditions
laid down in the judgment in Case C-280/00 Altmark Trans and
Regierungspräsidium Magdeburg [2003] ECR I-7747 is not
satisfied.

However, in order to ensure compliance with the principle of effec-
tiveness,
if the national court finds that the fact of requiring a
pharmaceutical laboratory such as Boiron to prove that wholesale
distributors are overcompensated, and thus that the tax on direct
sales amounts to State aid, is likely to make it impossible or exces-
sively difficult for such evidence to be produced, since inter alia
that evidence relates to data which such a laboratory will not have,
the national court is required to use all procedures available to it
including that of ordering the necessary
under national
law,
in particular the production by one of the
measures of inquiry,
parties or a third party of a particular document.

(1) OJ C 69, 19.03.2005.

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Laboratoires Boiron SA

Defendant: Union de recouvrement des cotisations de sécurité
sociale et d'allocations familiales (Urssaf) de Lyon, assuming the
rights and obligations of the Agence centrale des organismes de
sécurité sociale (ACOSS)

Re:

Reference for a preliminary ruling — Cour de Cassation —
Interpretation of Articles 86 and 87 — Classification as State
aid of the absence of liability to a tax on wholesale sales of
proprietary medicinal products by wholesalers
to
certain public service obligations in relation to their range,
stocks and delivery times of products (wholesale distributors)

subject

Operative part of the judgment

1. Community law must be interpreted as meaning that a pharma-
ceutical
laboratory liable to pay a contribution such as that
provided for by Article 12 of Law No 97-1164 of 19 December
1997 on social security funding for 1998 is entitled to plead that
the fact that wholesale distributors are not liable for that contribu-
tion constitutes State aid in order to obtain reimbursement of the
part of the sums paid which corresponds to the economic advan-
tage unfairly obtained by wholesale distributors.

Judgment of the Court (First Chamber) of 14 September
2006 (reference for a preliminary ruling from the Finanz-
gericht München, Germany) — Hausgemeinschaft Jörg und
Stefanie Wollny v Finanzamt Landshut

(Case C-72/05) (1)

(Sixth VAT Directive — Article 11A(1)(c) — Use of property
forming part of the assets of a business for private purposes
by a taxable person — Treatment of that use as a supply of
services for consideration — Determination of the taxable
amount — Definition of full cost to the taxable person of
providing those services)

(2006/C 281/19)

Language of the case: German

Referring court

Finanzgericht München, Germany

Parties to the main proceedings

Applicant: Hausgemeinschaft Jörg und Stefanie Wollny

Defendant: Finanzamt Landshut

18.11.2006

EN

Official Journal of the European Union

C 281/13

Re:

Defendant: Hellenic Republic (represented by: N. Dafniou and
M. Apessos, Agents)

Reference for a preliminary ruling — Finanzgericht München
— Interpretation of Article 11(A)(1)(c) of Sixth Council Direc-
tive 77/388/EEC of 17 May 1977 on the harmonisation of the
laws of
taxes —
the Member States relating to turnover
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — Taxable amount of supply of
service consisting of use of part of a building forming, in its
entirety, part of the assets of a business for the private use of
the taxable person — Definition of ‘full cost’ to the taxable
person

Operative part of the judgment

Article 11(A)(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
95/7/EC of 10 April 1995, is to be interpreted as meaning that it
does not preclude the taxable amount for VAT in respect of the
private use of part of a building treated by a taxable person as
forming, in its entirety, part of the assets of his business from being
fixed at a portion of the acquisition or construction costs of the
building, established in accordance with the length of the period for
adjustment of deductions concerning VAT provided for in Article 20
of that directive.

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 28 EC — National legislation considering the ‘bake-
off’ process (thawing and reheating of pre-baked and frozen
bread) to be a process of manufacturing bread and allowing
only bakeries to sell bread manufactured in that way.

Operative part of the judgment

The Court:

1. Declares that, by treating the process of final baking or reheating
of ‘bake-off’ products in the same way as the full process of manu-
facturing bread and by making it
to the conditions
prescribed by the national legislation with regard to bakeries, the
Hellenic Republic has failed to fulfil its obligations under Article
28 EC.

subject

2. Orders the Hellenic Republic to pay the costs.

That taxable amount must include the costs of acquiring the land on
which the building is constructed when that acquisition has been
subject to VAT and the taxable person has deducted that tax.

(1) OJ C 93, 16.04.2005

(1) OJ C 93, 16.4.2005.

Judgment of the Court (First Chamber) of 14 September
2006 — Commission of the European Communities v
Hellenic Republic

Judgment of the Court (Second Chamber) of 14 September
2006 (reference for a preliminary ruling from the College
van Beroep voor het bedrijfsleven — Netherlands ) —
Stichting Zuid-Hollandse Milieufederatie v Minister van
Landbouw, Natuur en Voedselkwaliteit

(Case C-82/05) (1)

(Case C-138/05) (1)

(Failure of a Member State to fulfil obligations — Free move-
ment of goods — Article 28 EC — Quantitative restrictions
— Measures having equivalent effect — Marketing of frozen
bakery products)

(Authorisation for
the placing of plant protection and
biocidal products on the market — Directive 91/414/EEC —
Article 8 — Directive 98/8/EC — Article 16 — Power of
Member States during the transitional period)

(2006/C 281/20)

Language of the case: Greek

(2006/C 281/21)

Language of the case: Dutch

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia, Agent)

College van Beroep voor het bedrijfsleven