Case C-172/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.
Date: 2007-06-23
Institutions: Court of Justice
Subjects: EU law - national law, company with share capital, interpretation of the law, pharmacy, right of establishment

23.6.2007

EN

Official Journal of the European Union

C 140/11

2. (i) Regardless of the reply to be given to question (1), is the
imposition of a temporal restriction — in the sense that the
link must have existed for a significant period of time — as
a precondition for the application of the scheme, where the
persons concerned are not permitted to demonstrate that
there is a valid economic reason for the link being forged,
disproportionate in relation to the objectives of the directive
and to the need for compliance with the principle prohi-
legislation to be
biting the abuse of rights? (ii)
regarded in any event as contrary to the principle of the
neutrality of VAT?

Is that

(1) OJ 1977 L 145, p. 1

graph 8 of the Gesetz über das Apothekenwesen — ApoG
— (Law on Pharmacies) of 15 October 1980 (BGBl. I, p.
1993), as amended most recently by Article 34 of the Regu-
lations of 31 October 2006 (BGBl. I, p. 2407)?

2. If the first question is answered in the affirmative:

Having regard in particular to Article 10 EC and to the prin-
is a national
ciple of effectiveness of Community law,
authority entitled and obliged to disapply national provisions
it regards as contrary to Community law even if there is no
clear breach of Community law and it has not been estab-
lished by the Court of Justice of the European Communities
that
the relevant provisions are incompatible with Com-
munity law?

Reference for a preliminary ruling from the Verwaltungs-
lodged on 30 March
gericht des Saarlandes (Germany)
2007 — Apothekerkammer des Saarlandes, Marion
Schneider, Michael Holzapfel, Dr Fritz Trennheuser and
Deutscher Apothekerverband e.V. v Saarland and Minis-
intervening
terium für Justiz, Gesundheit und Soziales,

party: DocMorris N.V.

Reference for a preliminary ruling from the Verwaltungs-
gericht des Saarlandes (Germany)
lodged on 30 March
2007 — Helga Neumann-Seiwert v Saarland and Minis-
intervening
terium für Justiz, Gesundheit und Soziales,

party: DocMorris N.V.

(Case C-171/07)

(2007/C 140/18)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

(Case C-172/07)

(2007/C 140/19)

Language of the case: German

Referring court

Verwaltungsgericht des Saarlandes

Parties to the main proceedings

Claimant: Helga Neumann-Seiwert

Claimants: Apothekerkammer des Saarlandes, Marion Schneider,
Michael Holzapfel, Dr Fritz Trennheuser and Deutscher Apothe-
kerverband e.V.

Defendants: Saarland and Ministerium für Justiz, Gesundheit und
Soziales

Defendants: Saarland and Ministerium für Justiz, Gesundheit und
Soziales

Joined party: DocMorris N.V

Joined party: DocMorris N.V.

Questions referred

Questions referred

1. Are the provisions concerning freedom of establishment for
capital companies (Articles 43 and 48 EC) to be interpreted
as precluding a prohibition on foreign ownership of pharma-
cies, as provided for by Paragraph 2(1)(1) to (4) and (7), the
first sentence of Paragraph 7 and the first sentence of Para-

1. Are the provisions concerning freedom of establishment for
capital companies (Articles 43 and 48 EC) to be interpreted
as precluding a prohibition on foreign ownership of pharma-
cies, as provided for by Paragraph 2(1)(1) to (4) and (7), the
first sentence of Paragraph 7 and the first sentence of Para-
graph 8 of the Gesetz über das Apothekenwesen — ApoG
— (Law on Pharmacies) of 15 October 1980 (BGBl. I, p.
1993), as amended most recently by Article 34 of the Regu-
lations of 31 October 2006 (BGBl. I, p. 2407)?

C 140/12

EN

Official Journal of the European Union

23.6.2007

2. If the first question is answered in the affirmative:

Pleas in law and main arguments

Having regard in particular to Article 10 EC and to the prin-
ciple of effectiveness of Community law,
is a national
authority entitled and obliged to disapply national provisions
it regards as contrary to Community law even if there is no
clear breach of Community law and it has not been estab-
lished by the Court of Justice of the European Communities
that
the relevant provisions are incompatible with Com-
munity law?

Action brought on 30 March 2007 — Commission of the
European Communities v Italian Republic

(Case C-174/07)

(2007/C 140/20)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Afonso, acting as Agents)

Defendant: Italian Republic

Form of order sought

1. The Commission points out that the Community legislature
imposed a twofold obligation on Member States consisting
not only in adopting all legislative measures required under
national law to implement the Sixth VAT Directive but also
in adopting all administrative measures necessary to ensure
that taxable persons liable to VAT comply with the obliga-
tions arising under the Sixth Directive, primarily the obliga-
tion to pay the tax due as a result of effecting taxable trans-
actions spanning a certain period of time. It would not have
made any sense for
the Community legislature to have
provided for the harmonisation of VAT, nor would it have
served any practical purpose,
if national fiscal authorities
were not required to implement a system of assessment and
monitoring intended to ensure ‘the collection of taxes in a
uniform manner in all Member States’, as stated in the four-
teenth recital in the preamble to the Sixth Directive.

2. The rules introduced by Articles 8 and 9 of Italian Law No
289/2002 went far beyond the bounds of administrative
discretion conferred on the Member States by the Com-
munity legislature. In fact, instead of using that discretion to
achieve more effective fiscal monitoring, by the above-
the Italian State truly abandoned in a
mentioned law,
general, indiscriminate and preventive manner all forms of
VAT assessment and verification, and is thus in direct breach
of the requirements under Article 22 of the Sixth Directive
the general obligation under
and, as a consequence, of
Article 2 to subject all taxable transactions to VAT. The
Italian legislature has given all taxable persons liable to VAT
and subject
fiscal competence the possibility of
bypassing entirely any form of fiscal control in relation to a
series of tax years. A taxable person may acquire such a
significant benefit by the payment of an amount calculated
according to a standard method which no longer has any
connection with the amount of VAT that would have been
payable in respect of the cost of supplies of goods or services
effected by the taxable person in the relevant tax year.

to its

— declare that, by extending by Article 2(44) of Law No 350
of 24 December 2003 (2004 Finance Law) to 2002 the tax
amnesty provided for in Articles 8 and 9 of Law No 289 of
27 December 2002 (2003 Finance Law), and providing
that assessment of
expressly and in a general manner
taxable transactions effected in the 2002 tax period is to be
abandoned, the Italian Republic has failed to fulfil its obliga-
tions under Article 2(1)(a)(c) and (d) and Articles 193 to
273 of Title XI of Council Directive 2006/112/EC (1) of 28
November 2006 on the common system of value added tax,
which from 1 January 2007 repealed and replaced Articles 2
and 22 of Sixth Council Directive 77/388/EEC (2) 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;

— order the Italian Republic to pay the costs.

3. A particularly striking example of this radical

‘separation’
between the tax liability that is calculated as being payable in
accordance with normal VAT rules and the ‘quantum’
payable to qualify for the ‘graveyard amnesty’ is to be found
in the case of a taxable person who has failed to file any tax
return at all. The taxable person can regularise his position
in respect of each tax year by a payment of Euro 1 500 in
the case of a natural person or Euro 3 000 in the case of a
company. A further example of the total absence of any link
with the basis of assessment of transactions effected (but not
declared) is to be found in the rules governing the ‘graveyard’
amnesty, which may be procured by submitting a supple-
mentary statement. The amount payable by a taxpayer
wishing to take advantage of the amnesty is calculated as a
percentage (2 %) to be applied to the VAT that would have
been payable in respect of the supply of goods or services
effected in each tax year (or the VAT improperly deducted in
respect of purchases in the same tax year).