CELEX: C1999/226/17
Language: en
Date: 1999-08-07 00:00:00
Title: Case C-144/99: Action brought on 21 April 1999 by the Commission of the European Communities against the Kingdom of the Netherlands

7.8.1999                EN                    Official Journal of the European Communities                                       C 226/11
Action brought on 21 April 1999 by the Commission of                     Finally, the Commission takes the view that interpretation
the European Communities against the Kingdom of the                      consistent with a directive, as a means whereby to compensate
                             Netherlands                                 for the fact that that directive has not been expressly trans-
                                                                         posed, does not satisfy the requirements of Article 249 EC (ex
                                                                         Article 189).
                           (Case C-144/99)
                                                                         (1) OJ 1993 L 95, p. 29.
                          (1999/C 226/17)
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 21 April 1999 by the Commission of the European
Communities, represented by P. Van Nuffel, of its Legal Service,         Action brought on 28 April 1999 by the Commission of
acting as Agent, assisted by M.H. van der Woude, of the                   the European Communities against the French Republic
Brussels Bar, and L. Dommering-Van Rongen, of the Amster-
dam Bar, with an address for service in Luxembourg at the
office of C. Gómez de la Cruz, of its Legal Service, Wagner                                       (Case C-156/99)
Centre. Kirchberg.
                                                                                                   (1999/C 226/18)
The applicant claims that the Court should:                              An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 28 April
                                                                         1999 by the Commission of the European Communities,
— declare that, by failing to adopt the laws, regulations and            represented by Enrico Traversa, Legal Adviser, acting as Agent,
     administrative provisions necessary for the full implemen-          assisted by Nicole Coutrelis, of the Paris Bar, with an address
     tation in Netherlands law of Articles 4(2) and 5 of Council         for service in Luxembourg at the office of Carlos Gómez de la
     Directive 93/13/EEC of 5 April 1993 on unfair terms in              Cruz, Wagner Centre, Kirchberg.
     consumer contracts (1), the Kingdom of the Netherlands
     has failed to fulfil its obligations under Article 249 EC (ex
     Article 189) and under that directive;                              The Commission of the European Communities claims that
                                                                         the Court should:
— order the Kingdom of the Netherlands to pay the costs of               — Declare that, by limiting the manufacturer’s right to deduct
     the proceedings.                                                        the amount of purchase vouchers from tris taxable amount
                                                                             for VAT purposes to money-saving vouchers where the
                                                                             manufacturer delivers direct to the retailer; and excluding
                                                                             money-saving vouchers where there is an indirect relation-
                                                                             ship between the manufacturer and the retailer, and all
                                                                             cash-on-delivery vouchers, the French Republic has failed
Pleas in law and main arguments                                              to fulfil its obligations under Article 11A(1)(a) and llC(l) of
                                                                             Council Directive 77/388/EEC of 17 May 1977 (the Sixth
                                                                             VAT Directive) (1);
The obligation of transparency resulting from Article 4(2), final        — Order the French Republic to pay the costs.
clause, and Article 5, first sentence, of Directive 93/13/EEC has
not in any way been explicitly transposed in Netherlands law.
This finding also applies in regard to the contra proferentem
principle, as set out in the second and third sentences of Article       Pleas in law and arguments
5 of the directive. The Commission takes the view that the
implicit method of transposition on which the Netherlands
Government relies (in particular Articles 3:35 and 6:248 of              The distinction drawn in the French legislation has no basis in
the Burgerlijk Wetboek, as well as the manner in which those             Article 11 of the Sixth VAT Directive, as interpreted by the
provisions are applied in case-law) does not in this case                Court inter alia in Elida Gibbs [1996] ECR I-5339, and cannot
constitute implementation for the purposes of Article 249 EC             therefore affect the rules on the taxable amount.
(ex Article 189). F i r s t , express rights require an express
method of implementation; the consume must be placed in a
position in which he is able himself to know his rights.                 (1) OJ 1977 L 145, p. 1.
S e c o n d , the Commission doubts whether the implicit
method of implementation effected by the Netherlands
Government achieves the result intended by Articles 4(2) and
5.