CELEX: C2000/079/25
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-508/99: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 16 December 1999 in the case of Palais am Stadtpark Hotelbetriebsges.m.b.H. & CO KG v Finanzlandesdirektion für Wien, Niederösterreich und Burgenland

18.3.2000               EN                    Official Journal of the European Communities                                    C 79/13
Action brought on 22 December 1999 by the Commission                     Reference for a preliminary ruling by the College van
of the European Communities against the Portuguese                       Beroep voor het Bedrijfsleven by judgment of that court
                              Republic                                   of 19 October 1999 in the case of Denkavit Nederland BV
                                                                         against (1) Minister van Landbouw, Natuurbeheer en
                                                                           Visserij; (2) Voedselvoorzieningsin- en verkoopbureau
                         (Case C-506/99)
                                                                                                 (Case C-507/99)
                          (2000/C 79/23)                                                          (2000/C 79/24)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the College van Beroep
An action against the Portuguese Republic was brought                    voor het Bedrijfsleven (Commercial Court of Appeal) of
before the Court of Justice the European Communities on                  19 October 1999, received at the Court Registry on
22 December 1999 by the Commission of the European                       23 December 1999, for a preliminary ruling in the case of
Communities, represented by António Caeiros, of its Legal               Denkavit Nederland BV against (1) Minister van Landbouw,
Service, and Manuel Desantes, national civil servant on                  Natuurbeheer en Visserij (Minister for Agriculture, Nature
secondment to the Commission’s Legal Service, acting as                  Management and Fisheries); (2) Het Voedselvoorzieningsin- en
Agents, with an address for service in Luxembourg at the office          verkoopbureau (Foodstuffs buying-in and sales agency) on the
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                   following questions:
                                                                         1. Does the fact that the calves in issue come under the
The applicant claims that the Court should:                                  common organisation of the market in beef and veal mean
                                                                             that the (alleged) power on the part of the Netherlands
                                                                             authorities to determine the point in time at which
                                                                             British calves are to be slaughtered must have a basis in
— declare that, by failing to adopt and bring into force the                 Community legislation, in the absence of which the
    laws, regulations and administrative provisions necessary                national authorities do not have any such power?
    to comply with Directive 96/9/EC of the European Parlia-
    ment and of the Council of 11 March 1996 on the legal                2. If the answer to the first question is in the affirmative:
    protection of databases (1) within the period prescribed in              does Article 8 of Directive 90/425/EEC (1) constitute an
    Article 16(1) thereof, the Portuguese Republic has failed to             adequate basis for that power?
    fulfil its obligations under the first paragraph of Article 10
    and the third paragraph of Article 249 of the EC Treaty, as          3. If the second question is answered in the negative: is there
    well as the provisions of Article 16(1) of Directive 96/9/EC;            any other basis for that power in Community law?
— declare, in the alternative, that by failing to inform the             (1) OJ 1990 L 224, p. 29.
    Commission immediately of such measures, the Portuguese
    Republic has failed to fulfil its obligations under those
    provisions;
— order the Portuguese Republic to pay the costs.
                                                                         Reference for a preliminary ruling from the Verwaltungs-
                                                                         gerichtshof by order of that court of 16 December 1999
                                                                         in the case of Palais am Stadtpark Hotelbetriebsges.m.b.H.
Pleas in law and main arguments                                          & CO KG v Finanzlandesdirektion für Wien, Niederöster-
                                                                                             reich und Burgenland
                                                                                                 (Case C-508/99)
The pleas in law and main arguments are analogous with those
set out in Case C-495/99 (2); the period prescribed in Article 16
of Directive 96/9/EC expired on 1 January 1998.                                                   (2000/C 79/25)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Verwaltungsgericht-
(1) OJ 1996 L 77, p. 20.                                                 shof (Higher Administrative Court), Austria, of 16 December
(2) OJ C 63, 4.3.2000, p. 16.                                            1999, which was received at the Court Registry on 24 Decemb-
                                                                         er 1999, for a preliminary ruling in the case of Palais am
                                                                         Stadtpark Hotelbetriebsges.m.b.H. & CO KG v Finanzlandesdi-
                                                                         rektion für Wien, Niederösterreich und Burgenland on the
                                                                         following question:
 ---pagebreak--- C 79/14                EN                   Official Journal of the European Communities                                    18.3.2000
Are the provisions of Council Directive 69/335/EEC of 17 July             for the decision. Since the German Government presented
1969 concerning indirect taxes on the raising of capital (OJ,             its case on the basis of the requirements of old
English Special Edition 1969 (11), p. 412), and in particular             Article 100a(4) EC, which it was entitled to do, the
Article 6, to be interpreted as precluding a Member State from            Commission to must use old Article 100a(4) as the basis
levying capital duty on the limited partners’ contributions to a          for its decision. The fact that old Article 100a(4) EC does
limited trading partnership (KEG) when a private limited                  not lay down a period for the Commission to reply
company (GmbH) joins it as general partner, if the partnership            certainly cannot have the consequence that the Com-
capital on which duty is to be imposed had already been                   mission alone has discretion to determine the period for
subjected, before the entry into force of Directive 69/335/EEC,           replying. Here too the principle of the duty of loyal
to a duty such as that referred to in Paragraph 33, schedule              cooperation under Article 10 EC (new numbering — old
item 16(1) (b) of the Gebührengesetz (Law on Fees) 1957,                  Article 5 EC) must apply.
BGBl. 267/1957?
                                                                          Whilst on its wording old Article 100a(4) only applies to
                                                                          harmonising measures of the Council, according to its
                                                                          scheme and purpose it is also applicable by analogy to
                                                                          directives of the Commission, or at least to those which are
                                                                          issued as a consequence of votes in adaptation committees
                                                                          where the applicant Member State has been out-voted by
Action brought on 28 December 1999 by the Republic                        a qualified majority.
of Germany against the Commission of the European
                           Communities
                                                                          In the alternative: the German application should have
                         (Case C-512/99)                                  been examined under Article 95(4). The term ‘maintain’
                                                                          used therein is to be understood as also including measures
                                                                          adopted as a result of the transposition into national law
                          (2000/C 79/26)                                  of harmonising measures.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European           — Infringement of the right to a hearing and the duty to
Communities on 28 December 1999 by the Federal Republic                   cooperate in Article 10 EC. The Commission failed to
of Germany, represented by Wolf-Dieter Plessing, Minis-                   afford the German Government an opportunity to adjust
terialrat, and Dr Bettina Muttelsee-Schön, Head of Unit, Federal          its observations to a new legal basis, including sup-
Ministry of Finance, Graurheindorfer Str. 108, D-53117 Bonn.              plementing the presentation of its case as necessary, by
                                                                          granting it extra time.
The applicant claims that the Court should:
1. Definitively annul the Commission’s             decision    of      — In the alternative, misapplication of the requirements of
     26.10.1999 — K(1999)3490 final (1);                                  Article 95(5) EC:
2. Order the defendant to pay the costs.
                                                                          — the Commission is wrong to deny that there have been
                                                                              new scientific discoveries as to the carcinogenic effect
Pleas and law and main arguments                                              of certain man-made mineral fibres.
— Inappropriate legal basis: Instead of basing its decision on
     Article 95(EC) the Commission should have relied on                  — the Commission is wrong to deny that there is a
     old Article 100a(4) EC or Article 95(4) EC. The German                   problem specific to Germany. Because of its climate
     Government’s application could only be based on the                      and an environmental policy which encourages
     requirements applicable to the application. The fact that                increased use of insulation, Germany has the highest
     the German Government followed the provisions of old                     use of insulatory materials made from man-made
     Article 100a(4) EC which was applicable at the material                  mineral fibre in the EU. The number of employees
     time cannot work its detriment ex post facto.                            and home workers at risk is therefore likely to be
                                                                              significantly higher than in other Member States.
     The application of old Article 100a(4) EC is also compat-
     ible with the scheme of the Treaty. The rule is closely
     interconnected with old Article 100a(1) EC. Old                   — Error of appraisal in relation to scientific knowledge of
     Article 100a(4) EC governs the right under the Treaty a              man-made mineral fibres. Large parts of the technical
     Member State out-voted by qualified majority on the                  experts’ report do not dispute in detail the state of
     adoption of a harmonising measure to pass derogating                 scientific knowledge as described by Germany. The CSTEE
     national legislation. The link between the two provisions            Committee, on whose opinion the Commission relies,
     established by the Community legislature cannot be dis-              obviously did not have access to the scientific views on
     solved ex post facto by having recourse to a different basis         which the German Government based its application.