Source: EURLEX
Language: en
Format: md

C 7/22 EN Official Journal of the European Union 10.1.2004

(i) do the transactions between B and connected companies within the Member State
(‘A’, ‘C’ and ‘D’) qualify for VAT purposes
as supplies made by or to those companies
in the course of their economic activities;
if not,

(ii) what factors should be considered in
determining the identity of the supplier of
the slot gaming services?

4. a) Is there a principle of abuse of right which
(independently of the interpretation given to
the VAT Directives) is capable of precluding the
advantage sought in a case such as the present?

b) If so, how does it operate in the circumstances
such as the present?

5. a) What significance, if any, should be attached to
the fact that A, C and D are not subsidiaries of
B and that B does not control A, C and D either
legally or economically?

b) Would it make a difference to any of the
answers given above if the type of management
undertaken by B at its business establishment
outside the territory of the Community were
necessary for the provision of slot gaming
services to customers and neither A, C nor D
performs those activities?

( [1] ) OJ L 145, 13.06.77, p. 1.
( [2] ) OJ L 326, 21.11.1986, p. 40.

**Reference for a preliminary ruling by the High Court**
**of Justice (England & Wales), Queen’s Bench Division**
**(Administrative Court), by order of that court dated**
**23 October 2003, in the case of The Queen on the**
**application of 1) ABNA Ltd, 2) Denis Brinicombe (a part-**
**nership), 3) BOCM Pauls Ltd, 4) Devenish Nutrition Ltd,**
**5) Nutrition Services (International) Ltd, 6) Primary Diets**
**Ltd against 1) Secretary of State for Health, 2) Food**
**Standards Agency**

**(Case C-453/03)**

(2004/C 7/35)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Adminis

trative Court) dated 23 October 2003, which was received at
the Court Registry on 27 October 2003, for a preliminary
ruling in the case of The Queen on the application of 1) ABNA
Ltd, 2) Denis Brinicombe (a partnership), 3) BOCM Pauls Ltd,
4) Devenish Nutrition Ltd, 5) Nutrition Services (International)
Ltd, 6) Primary Diets Ltd and 1) Secretary of State for Health,
2) Food Standards Agency on the following question:

Are Article 1(1)(b) of Directive 2002/02 ( [1] ) and/or Article 1(4)
of Directive 2002/02, to the extent that it amends
Article 5c(2)(a) of Directive 79/373 ( [2] ) by requiring percentages
to be listed, invalid by reason of

a. the absence of a legal basis in Article 152(4)(b) EC;

b. infringement of the fundamental right to property;

c. infringement of the principle of proportionality?

( [1] ) Directive 2002/02/EC of the European Parliament and of the
Council of 28 January 2002 amending Council Directive 79/373/
EEC on the circulation of compound feedingstuffs and repealing
Commission Directive 91/357/EEC (OJ L 63, 06.03.2002, p. 23).
( [2] ) Directive 79/373/EEC of the Council of 2 April 1979 on the
marketing of compound feedingstuffs (OJ L 86, 06.04.1979,
p. 30).

**Action brought on 27 October 2003 by the Commission**
**of the European Communities against the Italian Republic**

**(Case C-456/03)**

(2004/C 7/36)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 27 October
2003 by the Commission of the European Communities,
represented by Karen Banks, acting as Agent.

The applicant claims that the Court should:

—
declare that, by failing to bring into force the laws,
regulations and administrative provisions necessary to
comply with Directive 1998/44/EC ( [1] ) of the European
Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological inventions, the Italian
Republic has failed to fulfil its obligations under Article 15
of that directive;

10.1.2004 EN Official Journal of the European Union C 7/23

—
order the Italian Republic to pay the costs.

_Pleas in law and main arguments_

The period for transposition of the directive expired on 30 July
2002.

( [1] ) OJ 1998 L 213, p. 13.

**Reference for a preliminary ruling by the Tribunale di**
**Bergamo by order of that Court of 3 August 2003 in the**
**case brought by Azienda agricola Albergati Giovanni**
**Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’**
**and Coop. Latte 2005 S.C.A.R.L.**

**(Case C-457/03)**

(2004/C 7/37)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Bergamo
(Bergamo District Court) of 3 August 2003, received at the
Court Registry on 29 October 2003, for a preliminary ruling
in the case brought by Azienda agricola Albergati Giovanni
Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’ and
Coop. Latte 2005 S.C.A.R.L. on the following question:

Must Article 1 of Regulation (EEC) No 856/84 ( [1] ) of 31 March
1984 and Articles 1 to 4 of Regulation No 3950/92 ( [2] ) of
28 December 1992 be interpreted as meaning that the
additional levy on milk and milk products is in the nature of
an administrative penalty with the result that producers are
liable to pay it only where quantities allocated have been
exceeded by them intentionally or as a result of negligence?

( [1] ) OJ L 90 of 01.04.1984, p. 10.
( [2] ) OJ L 405 of 31.12.1992, p. 1.

**Reference for a preliminary ruling by the Verwaltungsge-**
**richt, Autonome Sektion für die Provinz Bozen by order**
**of that Court of 27 September 2003 in the case of**
**Parking Brixen G.m.b.H against Municipality of Brixen/**
**Bressanone and Stadtwerke Brixen A.G.**

**(Case C-458/03)**

(2004/C 7/38)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht,
Autonome Sektion für die Provinz Bozen (Administrative
Court, Autonomous Division for the Province of Bolzano) of
27 September 2003, received at the Court Registry on
30 October 2003, for a preliminary ruling in the case
of Parking Brixen G.m.b.H against Municipality of Brixen/
Bressanone and Stadtwerke Brixen A.G. on the following
questions:

1. Does the award of the management of the public pay car
parks in question concern a public service contract within
the meaning of Directive 92/50/EEC ( [1] ) or a public service
concession contract to which the competition rules of
the EC, in particular the obligation to ensure equal
treatment and transparency, must be applied?

2. If that award does concern a service concession contract
relating to the management of a local public service, is
the award of the management of public pay car parks
which, under Article 44(6)(b) of Regional Law No 1 of
4 January 1993, as amended by Article 10 of Regional
Law No 10 of 23 January 1998 and under Article 88(6)(a)
and (b) of the consolidated text of the provisions concerning local government, can be effected without a public
invitation to tender, compatible with Community law, in
particular with the principles of freedom to provide
services and freedom of competition, the prohibition of
discrimination, and the resultant obligations to ensure
equal treatment, transparency and proportionality, where
a public limited company is involved which was set up
pursuant to Article 115 of Legislative Decree No 267/
2000 by the conversion of a special undertaking of a
municipality, whose share capital at the time of the award
was held 100 % by the municipality itself but whose
administrative board enjoys all extensive powers of
routine administration up to a value of
EURO 5 000 000,00 per transaction?

( [1] ) OJ L 209 [1992], p. 1.