Case C-399/06 P: Appeal brought on 25 September 2006 by Faraj Hassan against the judgment of the Court of First Instance (Second Chamber) delivered on 12 July 2006 in Case T-49/04: Faraj Hassan v Council of the European Union and Commission of the European Communities
Date: 2006-12-02
Institutions: Court of Justice
Subjects: Afghanistan, EU relations, European Commission, action for annulment (EU), appeal, common foreign and security policy, economic sanctions, foreign capital, international sanctions, terrorism

C 294/30

EN

Official Journal of the European Union

2.12.2006

3. If Question 1 is answered in the affirmative, has an air
carrier then taken all reasonable measures to avoid cancella-
tion for the purposes of the Regulation if it can be estab-
lished that there were no aircraft available for use for the
flight in respect of which an aircraft which was taken out of
operation due to technical problems was scheduled to be
used?

Pleas in law and main arguments

in the Netherlands rules that

in order to
The requirement
obtain a residence permit a person must have sufficient means
for a minimum period of one year is not in conformity with
Community law.

4. If Question 1 is answered in the affirmative, is it relevant
that the documentation concerning the technical problems
relied on by the air carrier originates solely from the air
carrier itself?

(1) OJ 1990 L 180, p. 26.
(2) OJ 1990 L 180, p. 28.
(3) OJ, English Special Edition 1968(II), p. 485.

Action brought on 25 September 2006 — Commission of
the European Communities v Kingdom of the Netherlands

(Case C-398/06)

(2006/C 294/53)

Language of the case: Dutch

the judgment of

Appeal brought on 25 September 2006 by Faraj Hassan
against
Instance
(Second Chamber) delivered on 12 July 2006 in Case T-
49/04: Faraj Hassan v Council of the European Union and
Commission of the European Communities

the Court of First

(Case C-399/06 P)

(2006/C 294/54)

Language of the case: English

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Condou-Durande and R. Troosters, Agents)

Appellant: Faraj Hassan (represented by: E. Grieves, Barrister, H.
Miller, Solicitor)

Defendant: Kingdom of the Netherlands

Other parties to the proceedings: Council of the European Union,
Commission of the European Communities

Form of order sought

Form of order sought

— Declare that, by maintaining in force national provisions
under which economically non-active and pensioned EU/
EEA nationals must prove that they have lasting means of
support in order to obtain a residence permit, the Kingdom
of the Netherlands has failed to fulfil its obligations under
Council Directive 90/364/EEC (1) of 28 June 1990 on the
right of residence, Council Directive 90/365/EEC (2) of 28
June 1990 on the right of residence for employees and self-
employed persons who have ceased their occupational
activity and Council Directive 68/360/EEC (3) of 15 October
1968 on the abolition of restrictions on movement and
residence within the Community for workers of Member
States and their families;

The applicant claims that the Court should:

1) Set aside the judgment of the Court of First Instance

2) Annul Council Regulation (EC) No 881/2002 of 27 May
2002 (1) as amended by Commission Regulation (EC) No
2049/2003 20 November 2003 (2) and/or Commission
Regulation (EC) No 2049/2003 20 November 2003 in its
entirety and/or in respect of the proscription of the Appli-
cant; and

3) Alternatively declare the aforementioned Regulations inap-
plicable in respect of its application to the applicant; and

4) Take such further action as the Court may deem appro-

— order the Kingdom of the Netherlands to pay the costs.

priate; and

2.12.2006

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Official Journal of the European Union

C 294/31

5) Order the Council to pay the costs incurred by the applicant

in the present proceedings;

Action brought on 26 September 2006 — Commission of
the European Communities v Bundesrepublik Deutschland

6) Order the Council to pay damages.

Pleas in law and main arguments

(Case C-401/06)

(2006/C 294/55)

Language of the case: German

The appellant maintains that the Council and Commission are
the rights protected by the European
obliged to respect
Convention on Human Rights (‘the Convention’) and cannot
abrogate that obligation, unless ‘at least equivalent protection’
is offered as a result of that abrogation.

Applicant: Commission of the European Communities (repre-
sented by: D. Triantafyllou, acting as Agent)

Defendant: Bundesrepublik Deutschland

Parties

It is further maintained that the protections offered by the
operation of the United Nations Security Council (‘UNSC’) are
not equivalent to that offered by the Convention.

Form of order sought

The appellant submits that the Court of First Instance erred in
law when it:

i) failed to directly assess whether the UNSC offered equivalent
protection to that of the Convention, specifically in relation
to Articles 6, 8, 13 and Article 1 of Protocol 1 of the
Convention; and

— declare that, by failing to determine the place where the
service is supplied in respect of the activity of an executor
in accordance with Article 9(2)(e) of the Sixth VAT Direc-
tive when the service is performed for customers estab-
lished outside the Community or for taxable persons estab-
lished in the Community but not in the same country as
the supplier, the Bundesrepublik Deutschland has failed to
fulfil its obligations under Article 9(2)(e) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on turnover
taxes (1);

— order the Bundesrepublik Deutschland to pay the costs.

ii) scrutinized the operation of the UNSC indirectly by virtue
of the principle of jus cogens rather than by virtue of and by
reference to the protection offered by Articles 6, 8, 13 and
Article 1 of Protocol 1 of the Convention.

Pleas in law and main arguments

It is further submitted that the Court of First Instance erred
when it found that the restriction on the usage of property was
not a relevant one as to the substance of the right to property.

(1) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing
certain specific restrictive measures directed against certain persons
and entities associated with Usama bin Laden, the Al-Qaida network
and the Taliban, and repealing Council Regulation (EC) No
467/2001 prohibiting the export of certain goods and services to
Afghanistan, strengthening the flight ban and extending the freeze
of funds and other financial resources in respect of the Taliban of
Afghanistan. (OJ L 139, p. 9)

(2) Commission Regulation (EC) No 2049/2003 of 20 November 2003
amending for the 25th time Council Regulation (EC) No 881/2002
imposing certain specific restrictive measures directed against
certain persons and entities associated with Usama bin Laden, the
Al-Qaida network and the Taliban, and repealing Council Regu-
lation (EC) No 467/2001. (OJ L 303, p. 20)

Under the third indent of Article 9(2)(e) of the Sixth VAT
Directive the place of supply of certain services which are
performed for customers established outside the Community or
for taxable persons established in the Community but not in
the same country as the supplier is the place where the
customer has established his business or has a fixed establish-
ment to which the service is supplied or, in the absence of
such a place, the place where he has his permanent address or
usually resides. Those services are the services of consultants,
engineers, consultancy bureaux, lawyers, accountants and other
similar services. That provision of the directive is a rule of
conflict which determines the place of taxation of the services
and the jurisdiction of the Member States.

Under the provisions of German law and the administrative
practice of the tax authorities based thereon, the place where
the services of an executor are supplied is the place from
which the operator provides its services. The place of supply in
respect of those services is therefore not determined under
Article 9(2)(e) of the directive when they are performed for
customers established outside the Community or for taxable
persons established in the Community but not in the same
country as the supplier.