CELEX: C1999/204/11
Language: en
Date: 1999-07-17 00:00:00
Title: Judgment of the Court of 27 April 1999 in Case C-48/97 (reference for a preliminary ruling by the VAT and Duties Tribunal, London): Kuwait Petroleum (GB) Ltd v Commissioners of Customs & Excise (Sixth VAT Directive - Sales promotion scheme - Goods supplied on redemption of vouchers - Supply for consideration - Price discounts and rebates - Definition)

C 204/6                  EN                       Official Journal of the European Communities                                           17.7.1999
                  JUDGMENT OF THE COURT                                          It is in this regard irrelevant that the contracting parties have
                                                                                 described their contract as a ‘contract of sale’. A contract having
                          of 27 April 1999                                       the characteristics mentioned above is however to be classified as
                                                                                 a contract for the supply of services or of goods within the
                                                                                 meaning of Article 13, first paragraph, point 3, of the
in Case C-99/96 (reference for a preliminary ruling from
                                                                                 Convention of 27 September 1968. It is for the national court,
the Bundesgerichtshof): Hans-Hermann Mietz v Intership
                       Yachting Sneek BV (1)                                     should the need arise, to determine whether the particular case
                                                                                 before it involves a supply of services or a supply of goods.
(Brussels Convention — Concept of provisional measures —
          Construction and delivery of a motor yacht)                        2. A judgment ordering interim payment of contractual consider-
                                                                                 ation, delivered at the end of a procedure such as that provided
                           (1999/C 204/10)                                       for under Articles 289 to 297 of the Netherlands Code of Civil
                                                                                 Procedure by a court not having jurisdiction under the Convention
                                                                                 of 27 September 1968 as to the substance of the matter is not a
                    (Language of the case: German)                               provisional measure capable of being granted under Article 24
                                                                                 of that Convention unless, first, repayment to the defendant of
                                                                                 the sum awarded is guaranteed if the plaintiff is unsuccessful as
(Provisional translation; the definitive translation will be published           regards the substance of his claim and, second, the measure
                    in the European Court Reports)                               ordered relates only to specific assets of the defendant located or
                                                                                 to be located within the confines of the territorial jurisdiction of
In Case C-99/96: reference to the Court under the Protocol of                    the court to which application is made.
3 June 1971 on the Interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
from the Bundesgerichtshof (Federal Court of Justice)                        (1) OJ C 145 of 18.5.1996.
(Germany), for a preliminary ruling in the proceedings pending
before that court between Hans-Hermann Mietz and Intership
Yachting Sneek BV — on the interpretation of Article 13, first
paragraph, points 1 and 3, Article 24, Article 28, second
paragraph, and Article 34, second paragraph, of the above
Convention of 27 September 1968 (OJ 1978 L 304, p. 36), as
amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978 L
304, p. 1 and — amended text — p. 77) and by the Convention
of 25 October 1982 on the Accession of the Hellenic
Republic (OJ 1982 L 388, p. 1) — the Court, composed of:                                       JUDGMENT OF THE COURT
G.C. Rodrı́guez         Iglesias,     President,        P.J.G. Kapteyn,
J.-P. Puissochet, G. Hirsch and P. Jann (Presidents of Cham-
bers), G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann,                                             of 27 April 1999
J.L. Murray, D.A.O. Edward (Rapporteur), H. Ragnemalm,
L. Sevón and M. Wathelet, Judges; P. Léger, Advocate General;
L. Hewlett, Administrator, for the Registrar, has given a                    in Case C-48/97 (reference for a preliminary ruling by the
judgment on 27 April 1999, in which it has ruled:                            VAT and Duties Tribunal, London): Kuwait Petroleum
                                                                                 (GB) Ltd v Commissioners of Customs & Excise (1)
1. Article 13, first paragraph, point 1, of the Convention of
     27 September 1968 on Jurisdiction and the Enforcement of
     Judgments in Civil and Commercial Matters, as amended by the            (Sixth VAT Directive — Sales promotion scheme — Goods
     Convention of 9 October 1978 on the Accession of the Kingdom            supplied on redemption of vouchers — Supply for consider-
     of Denmark, Ireland and the United Kingdom of Great Britain                  ation — Price discounts and rebates — Definition)
     and Northern Ireland, and by the Convention of 25 October
     1982 on the Accession of the Hellenic Republic, must be
     construed as not applying to a contract between two parties                                       (1999/C 204/11)
     having the following characteristics, that is to say, a contract:
     — relating to the manufacture by the first contracting party of
         goods corresponding to a standard model, to which certain                               (Language of the case: English)
         alterations have been made;
     — by which the first contracting party has undertaken to                In Case C-48/97, reference to the Court under Article 177 of
         transfer the property in those goods to the second contracting      the EC Treaty by the VAT and Duties Tribunal, London, for a
         party, who has undertaken, by way of consideration, to pay          preliminary ruling in the proceedings pending before that
         the price in several instalments; and                               court between Kuwait Petroleum (GB) Ltd and Commissioners
                                                                             of Customs & Excise on the interpretation of Articles 2, point
     — in which provision is made for the final instalment to be             1, 5(6), 11A(3)(b) and 27 of the Sixth Council Directive
         paid before possession of the goods is transferred definitively     77/388/EEC of 17 May 1977 on the harmonisation of the
         to the second contracting party.                                    laws of the Member States relating to turnover taxes —
 ---pagebreak--- 17.7.1999               EN                       Official Journal of the European Communities                                            C 204/7
Common system of value added tax: uniform basis of assess-                  at the rate of ECU 43.09 per day of late payment from 1 April
ment (OJ 1977 L 145, p. 1) — the Court, composed of                         1988 and, second, to pay the Commission the sum of
G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn and G. Hirsch           ECU 60 000 by way of compensation for the damage suffered
(Rapporteur) (Presidents of Chambers), G.F. Mancini, J.C.                   — the Court (Fifth Chamber), composed of J.-P. Puissochet
Moitinho de Almeida, C. Gulmann, D.A.O. Edward, L. Sevón                   (Rapporteur), President of the Chamber, P. Jann, C. Gulmann
and M. Wathelet, Judges, Advocate General: N. Fennelly,                     D.A.O. Edward and L. Sevón, Judges; Advocate General: A. La
Registrar: D. Louterman-Hubeau, Principal Administrator —                   Pergola; Registrar: H.A. Rühl, Principal Administrator, has
has given a judgment on 27 April 1999 in which it held that:                given a judgment on 27 April 1999, in which it:
1. On a proper construction of Article 11A(3)(b) of the Sixth               1. Orders SNUA Srl to pay to the Commission of the European
    Council Directive 77/388/EEC of 17 May 1977 on the                           Communities the sum of EUR 195 397 together with interest
    harmonisation of the laws of the Member States relating to                   at a rate of EUR 43.09 per day of late payment as from 1 April
    turnover taxes — Common system of value added tax: uniform                   1988 until final settlement of the debt;
    basis of assessment, the terms ‘rebates’ and ‘price discounts’
    cannot be applied to reductions covering the whole cost of              2. Dismisses the remainder of the action;
    supplying redemption goods.
                                                                            3. Orders SNUA Srl to pay the costs.
2. On a proper construction of Article 5(6) of the Sixth Directive
    77/388, the application by an oil company of goods which are            (1) OJ C 131 of 26.4.1997.
    disposed of to a purchaser of fuel in exchange for vouchers which
    he has obtained in varying quantifies, depending on the volume
    of fuel purchased, on payment of the full retail price for fuel from
    the pump — under a sales promotion scheme such as that in
    issue in the main proceedings — must, where the goods are not
    of small value, be treated as a supply for consideration within the
    meaning of that provision.
                                                                                               JUDGMENT OF THE COURT
(1) OJ C 108 of 5.4.1997.                                                                               (First Chamber)
                                                                                                       of 28 April 1999
                                                                            in Case C-405/97 (reference for a preliminary ruling
                                                                            by the Finanzgericht Bremen): Mövenpick Deutschland
                                                                              GmbH für das Gastgewerbe v Hauptzollamt Bremen (1)
                 JUDGMENT OF THE COURT
                                                                            (Combined nomenclature — Tariff heading 0802 — Dried
                           (Fifth Chamber)                                  walnut pieces temporarily stored at a temperature of −24 oC)
                                                                                                        (1999/C 204/13)
                          of 27 April 1999
in Case C-69/97 Commission of the European Communi-                                             (Language of the case: German)
                         ties v SNUA Srl (1)
                                                                            (Provisional translation: the definitive translation will be published
           (Arbitration clause — Breach of contract)
                                                                                                 in the European Court Reports)
                          (1999/C 204/12)                                   In Case C-405/97, reference to the Court under Article 177 of
                                                                            the EC Treaty by the Finanzgericht Bremen (Germany) for a
                                                                            preliminary ruling in the proceedings pending before that court
                    (Language of the case: Italian)                         between Mövenpick Deutschland GmbH für das Gastgewerbe v
                                                                            Hauptzollamt Bremen, on the interpretation of tariff heading
                                                                            0802 of the Combined Nomenclature, in the version contained
(Provisional translation; the definitive translation will be published      in Annex I to Commission Regulation (EEC) No 2551/93 of
                   in the European Court Reports)                           10 August 1993, amending Annex I to Council Regulation
                                                                            (EEC) No 2658/87 on the tariff and statistical nomenclature
In Case C-69/97: Commission of the European Communities                     and on the Common Customs Tariff (OJ 1993 L 241, p. 1)
(Agents: Paolo Stancanelli and Jean-Francis Pasquier, assisted              and on the interpretation of Article 522(3) of Commission
by Alberto Dal Ferro) v SNUA Srl, a company incorporated in                 Regulation (EEC) No 2454/93 of 2 July 1993 laying down
Pordenone (Italy), represented by Andrea Guarino, of the Rome               provisions for the implementation of Council Regulation (EEC)
Bar, and Ezio Trampus — application by the Commission of                    No 2913/92 establishing the Community Customs Code (OJ
the European Communities under Article 181 of the EC Treaty                 1993 L 253, p. 1) — the Court (First Chamber), composed of
for an order requiring SNUA Srl, first, to reimburse an advance             P. Jann (Rapporteur), President of the Chamber, D.A.O. Edward
payment of ECU 195 397 made by the Commission for the                       and L. Sevón, Judges, Advocate General: A. Saggio, Registrar:
completion of an integrated system for the collection and                   R. Grass — has given a judgment on 28 April 1999, in which
recycling of solid waste at a private plant, together with interest         it held that: