Case C-520/07 P: Appeal brought on 22 November 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities
Date: 2007-11-22
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), State aid, action for annulment (EU), aid recipient, industrial cooperation, know-how, redemption

C 22/34

EN

Official Journal of the European Union

26.1.2008

2. If the answer to Question 1 is affirmative, does the applica-
tion of Article 6(2) of the Sixth Directive to services and
goods other than capital goods mean that VAT is collected
once during the tax period over which the deduction in
respect of
those services and goods is enjoyed, or must
collection also occur in ensuing periods and, if so, how is
the taxable amount to be determined in respect of goods and
services which the taxable person does not write off?

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

3. Do fuel additives such as those at

issue, which are not
intended for use, offered for sale or used as motor fuel but
which are added to motor fuel
for purposes other than
is used, fall to be
powering the vehicle in which the fuel
taxed under the second paragraph of Article 2(3) of Directive
2003/96/EC (2)?

4. If the answer to the third question is affirmative, are such
additives excluded from the scope of Directive 2003/96/EC
by virtue of the first indent of Article 4(b) of that Directive?

5. Is the duty imposed by the UK on the above fuel additives
precluded by Community law and in particular, by Article 3
of Directive 92/12/EEC (3)?

Reference for a preliminary ruling from High Court of
(United Kingdom) made on
Justice (Chancery Division)
22 November 2007 — Afton Chemical Limited v The
Commissioners of Her Majesty's Revenue & Customs

(1) OJ L 316, p. 12.
(2) OJ L 283, p. 51.
(3) OJ L 76, p. 1.

(Case C-517/07)

(2008/C 22/61)

Language of the case: English

Appeal brought on 22 November 2007 by the Commission
of the European Communities against the judgment of the
Court of First
(Fourth Chamber, Extended
Composition) delivered on 12 September 2007 in Case
T-196/02 MTU Friedrichshafen GmbH v Commission of
the European Communities

Instance

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Afton Chemical Limited

Parties

(Case C-520/07 P)

(2008/C 22/62)

Language of the case: German

Defendant: The Commissioners of Her Majesty's Revenue &
Customs

Appellant: Commission of the European Communities (repre-
sented by: K. Gross, B. Martenczuk)

Questions referred

Other party to the proceedings: MTU Friedrichshafen GmbH

1. Do fuel additives such as those at

issue, which are not
intended for use, offered for sale or used as motor fuel but
for purposes other than
which are added to motor fuel
powering the vehicle in which the fuel
is used, fall to be
taxed under Article 2(3) of Directive 92/81/EC?

2. If the answer to the first question is affirmative, do such
the exemption under

additives fall within the scope of
Article 8(1) of Directive 92/81/EC (1)?

Form of order sought

— Annul the contested judgment of the Court of First Instance
delivered on 12 September 2007 in Case T-196/02 MTU
Friedrichshafen GmbH v Commission of the European Commu-
nities,

26.1.2008

EN

Official Journal of the European Union

C 22/35

— give a final decision in the case and dismiss the application

Questions referred

as unfounded;

— order the applicant in the main proceedings to pay the costs
the

these appeal proceedings as well as the costs of

of
proceedings at first instance in Case T-196/02.

1.

Pleas in law and main arguments

The Court of First Instance erred in assuming that it was not
possible to make a decision on the basis of the available infor-
mation for the purpose of establishing the actual beneficiary of
the aid. Establishing the actual beneficiary is normally an inte-
gral part of Commission decisions ordering recovery of unlawful
aid. Making this determination is indeed necessary to ensure
efficient recovery of unlawful aid. Excluding the possibility of
establishing the actual beneficiary of aid on the basis of the
available information is thus not compatible with Article 13(1)
of Regulation (EC) No 659/1999.

Secondly, the Court was wrong to assume that the Commission
decision was based on a mere presumption which did not meet
the requirements of a decision on the basis of the available
information. On the one hand, where a decision is made on the
the information available no absolute certainty is
basis of
required. On the other, the Commission decision was based on
the information sent by SKL-M's insolvency administrator as to
the development costs of the know-how. The Commission thus
had sufficient evidence to allow it to conclude that the transfer
of the know-how to MTU represented an advantage for that
undertaking.

(a) Does Council Regulation (EC) No 2201/2003 (1)
concerning jurisdiction and the recognition and enforce-
judgments in matrimonial matters and the
ment of
matters of parental responsibility, repealing Regulation
(EC) No 1347/2000, (the Brussels IIa Regulation) apply
to the enforcement, such as in the present case, of a
public-law decision made in connection with child
protection,
the
immediate taking into care of a child and his or her
placement outside the home, in its entirety,

concerning

decision,

single

as

a

(b) or, having regard to the provision in Article 1(2)(d) of
the regulation, only to the part of the decision relating to
the placement outside the home?

2. How is the concept of habitual residence in Article 8(1) of
the regulation, like the associated Article 13(1), to be inter-
preted in Community law, bearing in mind in particular the
situation in which a child has a permanent residence in one
Member State but
is staying in another Member State,
carrying on a peripatetic life there?

3.

(a) If it is considered that the child's habitual residence is
not in the latter Member State, on what conditions may
an urgent measure (taking into care) nevertheless be
taken in that Member State on the basis of Article 20(1)
of the regulation?

Reference for a preliminary ruling from the Korkein
hallinto-oikeus (Finland) lodged on 23 November 2007 —
A

(b) Is

a protective measure within the meaning of
Article 20(1) of the regulation solely a measure which
can be taken under national law, and are the provisions
of national law concerning that measure binding when
the article is applied?

(Case C-523/07)

(2008/C 22/63)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: A

(c) Must the case, after the taking of the protective measure,
be transferred of the court's own motion to the court of
the Member State with jurisdiction?

4. If the court of a Member State has no jurisdiction at all,
must it dismiss the case as inadmissible or transfer it to the
court of the other Member State?

(1) OJ L 338, p. 1.