CELEX: C2003/289/28
Language: en
Date: 2003-11-29 00:00:00
Title: Case C-415/03: Action brought on 3 October 2003 by the Commission of the European Communities against the Hellenic Republic

C 289/14               EN                          Official Journal of the European Union                                          29.11.2003
Reference for a preliminary ruling by the Regeringsrätten                  Action brought on 3 October 2003 by the Commission of
by order of that Court of 29 September 2003 in the case                    the European Communities against the Hellenic Republic
  of Hotel Scandic Gåsabäck AB against Riksskatteverket
                                                                                                      (Case C-415/03)
                          (Case C-412/03)
                                                                                                     (2003/C 289/28)
                         (2003/C 289/27)
                                                                           An action against the Hellenic Republic was brought before
                                                                           the Court of Justice of the European Communities on 3 Octo-
                                                                           ber 2003 by the Commission of the European Communities,
                                                                           represented by D. Triantafillou and J.L. Buendia Sierra, of its
                                                                           Legal Service.
Reference has been made to the Court of Justice of the                     The applicant claims that the Court should:
European Communities by order of the Regeringsrätten
(Supreme Administrative Court) of 29 September 2003,
received at the Court Registry on 3 October 2003, for a                    —     declare that, by failing to take, within the time-limit laid
preliminary ruling in the case of Hotel Scandic Gåsabäck AB                      down, all the measures necessary for repayment of the
against Riksskatteverket on the following questions:                             aid found to be unlawful and incompatible with the
                                                                                 common market (except the IKA (Social Security Insti-
                                                                                 tution) contributions) in accordance with Article 3 of the
                                                                                 Commission Decision of 11 December 2002 on aid
1.    In the event that the Regeringsrätten finds, when the case                 granted by Greece to Olympic Airways (notified under
      is decided, that the company’s supplies are supplies of                    document number C(2002) 4831) or, in any event, by
      goods, are Article 2 and Article 5(6) of the Sixth Value                   failing to inform the Commission of the measures taken
      Added Tax Directive (1) to be interpreted as precluding                    pursuant to Article 4, the Hellenic Republic has failed to
      provisions in the legislation of a Member State under                      fulfil its obligations under Articles 3 and 4 of that decision
      which withdrawal of goods means that a taxable person                      and the EC Treaty;
      transfers goods to a third party for a consideration less
      than the purchase value of the goods or of similar goods
      or, if no such value is available, the cost price.                   —     order the Hellenic Republic to pay the costs.
2.    In the event that the Regeringsrätten finds, when the
      case is decided, that the company’s supplies are food                Pleas in law and main arguments
      dispensing services, are Article 2 and Article 6(2)(b) of
      the Sixth Value Added Tax Directive to be interpreted as
      precluding provisions in the legislation of a Member State
      under which withdrawal of goods means that a taxable                 The Commission decision obliges Greece to take all the
      person performs, arranges performance or in some other               necessary measures so as to recover from Olympic Airways
      way provides a service for himself or his staff for private          both the sum of EUR 41 000 000 (which relates to the
      purposes or for other non-commercial purposes, where                 restructuring aid set out in Article 1 of the decision) and the
      the service is provided for a consideration less than the            aid referred to in Article 2 of the decision, and to inform the
      cost of performing the service.                                      Commission within two months of the measures adopted.
                                                                           That period for compliance with the decision expired on
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the               13 February 2003.
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform
    basis of assessment (OJ L 145 of 13.6.1977, p. 1).
                                                                           In accordance with settled case-law, the only justification
                                                                           which may be put forward by a Member State in the context
                                                                           of the procedure under Article 88(2) EC is that it is absolutely
                                                                           impossible to implement the decision properly. However, on
                                                                           expiry of the abovementioned time-limit, the Greek authorities
                                                                           refused to implement the decision, invoking other grounds.
 ---pagebreak--- 29.11.2003            EN                         Official Journal of the European Union                                         C 289/15
Furthermore, in the present instance there are no grounds for                  ments with Romania, Poland and the Ukraine on trans-
allowing an exemption from the obligation to recover the aid.                  port by inland waterway, and refusing to revoke them;
                                                                         —     declare that the Federal Republic of Germany has
                                                                               breached its obligations under Regulation (EC) No 1356/
                                                                               96 (2), as the individual bilateral agreements on transport
                                                                               by inland waterway with Romania, Poland, the Ukraine,
                                                                               the Republic of Czechoslovakia and Hungary are incom-
Reference for a preliminary ruling by the Giudice di Pace                      patible with Regulation (EC) No 1356/96 and it has
di Milazzo by order of that Court of 18 April 2003 in the                      refused to revoke them;
   case of Provvidenza Regio against AXA Assicurazioni
                                                                         —     order the Federal Republic of Germany to pay the costs.
                        (Case C-425/03)
                        (2003/C 289/29)
                                                                         Pleas in law and main arguments
Reference has been made to the Court of Justice of the                   —     The Federal Republic of Germany has usurped the
European Communities by order of the Giudice di Pace di                        exclusive competence of the Community to conclude
Milazzo (Milazzo Magistrates’ Court) of 18 April 2003,                         international agreements within the meaning of the
received at the Court Registry on 6 October 2003, for a                        ‘AETR’ case-law by negotiating, concluding, ratifying and
preliminary ruling in the case of Provvidenza Regio against                    bringing into force individual bilateral agreements with
AXA Assicurazioni on the following question:                                   Romania, Poland and the Ukraine on transport by inland
                                                                               waterway which have an impact on the Community
                                                                               provisions which the Community adopted in Regulation
The questions of unconstitutionality raised in the present                     (EEC) No 3921/91. That regulation lays down the con-
proceedings concern Article 1 of Decree Law No 18/03, which                    ditions under which non-resident carriers may transport
removes from equitable assessment cases falling within the                     goods or passengers by inland waterway within a Member
jurisdiction of the Giudice di Pace concerning standard form                   State. Those conditions were widened in stages. The
contracts the value of which does not exceed EUR 1 100.                        balance thereby created is disturbed by Article 6 of the
                                                                               agreements concluded with Poland, Romania and the
                                                                               Ukraine whereby operators resident in third countries
                                                                               have access to cabotage in Germany.
                                                                         —     The Federal Republic of Germany has failed to fulfil
                                                                               its obligations under Article 10 EC by negotiating,
Action brought on 10 October 2003 by the Commission                            concluding, ratifying and bringing into force the con-
of the European Communities against the Federal Repub-                         tested bilateral agreements after the Council had granted
                         lic of Germany                                        the Commission authority to negotiate and the German
                                                                               Government could not have been unaware that nego-
                                                                               tiations for a multilateral agreement were in progress.
                        (Case C-433/03)
                                                                         —     The bilateral agreements concluded by the Federal Repub-
                        (2003/C 289/30)
                                                                               lic of Germany are incompatible with Council Regulation
                                                                               (EC) No 1356/96 on common rules applicable to the
                                                                               transport of goods or passengers by inland waterway
An action against the Federal Republic of Germany was                          between Member States with a view to establishing
brought before the Court of Justice of the European Communi-                   freedom to provide such transport services. The Polish,
ties on 10 October 2003 by the Commission of the European                      Ukrainian, Romanian, Czech, Slovak and Hungarian
Communities, represented by Claudia Schmidt and Wils                           barge owners and inland waterway transport undertak-
Wouter of its Legal Service, and Andreas Manville, Assistant in                ings, which may be allowed to carry out transport
its Legal Service, with an address for service in Luxembourg.                  between Germany and the other Member States under
                                                                               the contested agreements, do not satisfy the conditions
                                                                               laid down in that Regulation.
The Commission of the European Communities claims that
the Court should:
                                                                         (1) OJ 1991 L 373, p. 1.
—     declare that the Federal Republic of Germany has                   (2) OJ 1996 L 175, p. 7.
      breached its obligations under Article 10 EC and Regu-
      lation (EEC) No 3921/91 (1) by negotiating, concluding,
      ratifying and implementing individual bilateral agree-