CELEX: C1998/299/14
Language: en
Date: 1998-09-26 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 16 July 1998 in Case C-287/96 (reference for a preliminary ruling from the Bundesfinanzhof): Kyritzer Stärke GmbH v. Hauptzollamt Potsdam (Agriculture - Common organisation of the markets - Production refunds - System of securities - Time limits - Primary requirement - Subordinate requirement)

C 299/8               EN                Official Journal of the European Communities                                      26.9.98
court has particular difficulty in assessing the misleading             conformity with Community law or to disapply the
nature of the statement or description in question, it may              legislation in a situation falling outside the scope of
have recourse, under the conditions laid down by its own                Community law.
national law, to a consumer research poll or an expert's
report as guidance for its judgment.                               (1) OJ C 269, 14.9.1996.
(1) OJ C 247, 24.8.1996.
(2) OJ L 173, 6.7.1990, p. 5.
                                                                                   JUDGMENT OF THE COURT
                                                                                           (Fifth Chamber)
               JUDGMENT OF THE COURT                                                       of 16 July 1998
                        of 16 July 1998                            in Case C-287/96 (reference for a preliminary ruling from
                                                                   the Bundesfinanzhof): Kyritzer Stärke GmbH v.
in Case C-264/96 (reference for a preliminary ruling from                             Hauptzollamt Potsdam (1)
the House of Lords): Imperial Chemical Industries plc
(ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of           (Agriculture Ð Common organisation of the markets Ð
                            Taxes) (1)                             Production refunds Ð System of securities Ð Time limits
                                                                       Ð Primary requirement Ð Subordinate requirement)
(Right of establishment Ð Corporation tax Ð Surrender
by one company to another company in the same group of                                      (98/C 299/14)
tax relief on trading losses Ð Residence requirement
imposed on group companies Ð Discrimination according                              (Language of the case: German)
to the place of the corporate seat Ð Obligations of the
                        national court)
                                                                     (Provisional translation; the definitive translation will be
                         (98/C 299/13)
                                                                             published in the European Court Reports)
                (Language of the case: English)                    In Case C-287/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesfinanzhof for a
                                                                   preliminary ruling in the proceedings pending before that
In Case C-264/96: reference to the Court under Article 177
                                                                   court between Kyritzer Stärke GmbH and Hauptzollamt
of the EC Treaty from the House of Lords (United
                                                                   Potsdam, on the interpretation of Commission Regulation
Kingdom) for a preliminary ruling in the proceedings
                                                                   (EEC) No 2220/85 of 22 July 1985 laying down common
pending before that court between Imperial Chemical
                                                                   detailed rules for the application of the system of
Industries plc (ICI) and Kenneth Hall Colmer (Her
                                                                   securities for agricultural products (2) in conjunction with
Majesty's Inspector of Taxes), on the interpretation of
                                                                   Commission Regulation (EEC) No 1722/93 of 30 June
Articles 5 and 52 of the EC Treaty Ð the Court,
                                                                   1993 laying down detailed rules for the application of
composed of: G. C. Rodríguez Iglesias, President, H.
                                                                   Council Regulations (EEC) No 1766/92 and (EEC)
Ragnemalm, M. Wathelet (Rapporteur) and R. Schintgen,
                                                                   No 1418/76 concerning production refunds in the cereals
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                   and rice sectors respectively (3) Ð the Court (Fifth
Almeida, J. L. Murray, D. A. O. Edward, P. Jann, L.
                                                                   Chamber), composed of: C. Gulmann, President of
Sevón and K. M. Ioannou, Judges; G. Tesauro, Advocate
                                                                   Chamber, M. Wathelet, D. A. O. Edward, P. Jann
General; L. Hewlett, Administrator, for the Registrar, has
                                                                   (Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate
given a judgment on 16 July 1998, in which it has ruled:
                                                                   General; L. Hewlett, Administrator, for the Registrar, has
                                                                   given a judgment on 16 July 1998, in which it has ruled:
1. Article 52 of the EC Treaty precludes legislation of a
    Member State which, in the case of companies                   Article 10(1) of Commission Regulation (EEC) No 1722/
    established in that State belonging to a consortium            93 of 30 June 1993 laying down detailed rules for the
    through which they control a holding company, by               application of Council Regulations (EEC) No 1766/92
    means of which they exercise their right to freedom of         and (EEC) No 1418/76 concerning production refunds in
    establishment in order to set up subsidiaries in other         the cereals and rice sectors respectively is to be interpreted
    Member States, makes a particular form of tax relief           as follows:
    subject to the requirement that the holding company's
    business consists wholly or mainly in the holding of
    shares in subsidiaries that are established in the             Ð the use of a product falling within CN code
    Member State concerned;                                             3505 10 50, as prescribed by that provision,
                                                                        constitutes a primary requirement within the meaning
                                                                        of Article 20(2) of Commission Regulation (EEC)
2. in circumstances such as those in point in the main                  No 2220/85 of 22 July 1985 laying down common
    proceedings, Article 5 of the EC Treaty does not                    detailed rules for the application of the system of
    require the national court to interpret its legislation in          securities for agricultural products,
 ---pagebreak--- 26.9.98               EN                  Official Journal of the European Communities                                      C 299/9
Ð compliance with that requirement must be proved                    That presupposes, however:
     within the time limits laid down in Article 28 of that
     Regulation, failing which the whole of the security
     becomes forfeit pursuant to Article 22(1) and (2) of            Ð that the good faith of the recipient has first been
     that Regulation.                                                     established, and
(1) OJ C 318, 26.10.1996.
(2) OJ L 205, 3.8.1985, p. 5.                                        Ð that the conditions prescribed are the same as those
(3) OJ L 159, 1.7.1993, p. 112.                                           which apply with respect to the recovery of purely
                                                                          national financial benefits.
                                                                     (1) OJ C 318, 26.10.1996.
               JUDGMENT OF THE COURT
                        (Fifth Chamber)
                        of 16 July 1998
                                                                                    JUDGMENT OF THE COURT
in Case C-298/96 (reference for a preliminary ruling from                                    of 16 July 1998
the Verwaltungsgericht Frankfurt am Main): Oelmühle
Hamburg AG, Jb. Schmidt Söhne GmbH & Co. KG v.                       in Case C-355/96 (reference for a preliminary ruling from
     Bundesanstalt für Landwirtschaft und Ernährung (1)              the Oberster Gerichtshof): Silhouette International
                                                                                Schmied GmbH & Co. KG v. Hartlauer
(Unduly paid Community subsidy Ð Recovery Ð                                            Handelsgesellschaft mbH (1)
    Application of national law Ð Conditions and limits)
                                                                     (Directive 89/104/EEC Ð Exhaustion of trade mark Ð
                         (98/C 299/15)
                                                                     Goods put on the market in the Community or in a non-
                                                                                            member country)
               (Language of the case: German)                                                 (98/C 299/16)
  (Provisional translation; the definitive translation will be                       (Language of the case: German)
          published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-198/96: reference to the Court under Article 177
of the EC Treaty from the Verwaltungsgericht Frankfurt                         published in the European Court Reports)
am Main for a preliminary ruling in the proceedings
pending before that court between Oelmühle Hamburg
AG, Jb. Schmidt Söhne GmbH & Co. KG and                              In Case 355/96: reference to the Court under Article 177
Bundesanstalt für Landwirtschaft und Ernährung, on the               of the EC Treaty from the Oberster Gerichtshof for a
principles of Community law applicable to measures taken             preliminary ruling in the proceedings pending before that
by national authorities for the recovery of an unduly paid           court between Silhouette International Schmied GmbH &
Community subsidy Ð the Court (Fifth Chamber),                       Co. KG and Hartlauer Handelsgesellschaft mbH, on the
composed of: C. Gulmann, President of Chamber, M.                    interpretation of first Council Directive 89/104/EEC of
Wathelet, D. A. O. Edward, P. Jann (Rapporteur) and L.               21 December 1988 to approximate the laws of the
Sevón, Judges; P. LeÂger, Advocate General; H. von                   Member States relating to trade marks (2) as amended by
Holstein, Deputy Registrar, has given a judgment on                  the Agreement on the European Economic Area of 2 May
16 July 1998, in which it has ruled:                                 1992 (3) Ð the Court, composed of: G. C. Rodríguez
                                                                     Iglesias, President, C. Gulmann (Rapporteur), M. Wathelet
                                                                     and R. Schintgen, Presidents of Chambers, G. F. Mancini,
Community law does not in principle preclude national                L. Sevón and K. M. Ioannou, Judges; F. G. Jacobs,
legislation from allowing recovery of unduly paid                    Advocate General; H. von Holstein, Deputy Registrar, has
Community subsidies to be barred, on the basis of criteria           given a judgment on 16 July 1998, in which it has ruled:
such as loss of the enrichment, where:
                                                                     1. national rules providing for exhaustion of trade-mark
Ð the recipient of the subsidy had already, at the time                   rights in respect of products put on the market outside
     when it was granted, passed on the pecuniary                         the EEA under that mark by the proprietor or with its
     advantage resulting from it by paying the producer the               consent are contrary to Article 7(1) of first Council
     target price prescribed by Community law, and                        Directive 89/104/EEC of 21 December 1988 to
                                                                          approximate the laws of the Member States relating to
                                                                          trade marks, as amended by the Agreement on the
Ð any right or recourse against his suppliers is worthless.               European Economic Area of 2 May 1992;