CELEX: C1995/119/09
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 24 February 1995 by the Commission of the European Communities against the Italian Republic (Case C-45/95)

No C 119/4          IEN                   Official Journal of the European Communities                                     13 . 5 . 95
Reference for a preliminary ruling by the VAT and Duties             Reference for a preliminary ruling from Hogsta Domstolen
Tribunal, London, by decision of that court of 1 February            by order of that court of 21 February 1995 in the case of
1995 , in the case of Conoco Ltd against Commissioners of                 1 . Data Delecta Aktiebolag, 2. Ronny Forsberg v.
                     Customs and Excise                                                   MSL Dynamics Ltd
                         (Case C-40/95 )                                                     (Case C-43/95 )
                           95/C 119/07                                                         95/C 119/08 )
                                                                     Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the               European Communities by an order of Hogsta Domstolen
European Communities by a decision of the VAT and Duties             ( Supreme Court) of 21 February 1995, which was received
Tribunal, London, of 1 February 1995 , which was received            at the Court Registry on 24 February 1995 , for a
at the Court Registry on 20 February 1995, for a                     preliminary ruling in the case of 1 . Data Delecta Aktiebolag,
preliminary ruling in the case of Conoco Ltd against                 2 . Ronny Forsberg v. MSL Dynamics Ltd on the following
Commissioners of Customs and Excise, on the following                question:
questions:
                                                                     Under Paragraph 1 of Law 1980:307 on the obligation for
What, on the proper construction of Article 11A 1 ( a ) and          foreign plaintiffs to logde security for costs of judicial
Article 11C 1 of the Sixth Council Directive ( 77/388/EEC)           proceedings, a foreign legal person who wishes to bring
of 17 May 1977 on the harmonization of the laws of the               proceedings before a Swedish court against Swedish
Member States relating to turnover taxes — Common                    nationals or Swedish legal persons must, at the defendant's
system of value added tax: uniform basis of assessment (*), is       application, lodge security for the costs of the judicial
the taxable amount of a supplier in the situation of Conoco          proceedings which the foreign legal person may be obliged
Ltd ( as found in paragraph 5 of the Preliminary Decision),          to pay by virtue of a final decision in the case . Under
where :                                                              Paragraph 5 of that Law foreign legal persons are exempt
                                                                     from that obligation to the extent that that has been agreed
                                                                     in international agreements binding on Sweden. In the
( a ) the supplier procures the issue of a 'money-off' coupon        Government's notice 1991:112 on certain exemptions from
      which is redeemable at the stated amount (as printed on        the requirement for foreign plaintiffs to lodge security for
      the coupon) by the supplier in favour of a dealer who          costs of judicial proceedings et cetera no reference is made to
      has agreed to participate in a sales promotion                 any such agreement with regard to United Kingdom legal
      campaign;                                                      persons .
                                                                     In an action before the District Court for payment in respect
( b) the coupon, which is distributed to a potential customer        of supply of goods, the Swedish defendants have asked that
      in the course of the sales promotion campaign, must, as        the plaintiff, a United Kingdom company, should lodge
      a matter of contract between the supplier and the              sécurity for costs of judicial proceedings in accordance with
      dealer, be accepted by the dealer from a customer who          the provisions of the abovementioned Law.
      tenders it when purchasing more than a minimum
      specified amount of motor fuel from the dealer,                Is it contrary to the EC Treaty — primarily Article 6
      provided it is a valid coupon;                                 (formerly Article 7) — to require a plaintiff who is a United
                                                                     Kingdom legal person to lodge such a security when no such
(c) the customer on tendering the coupon is entitled as              security can be demanded from Swedish legal persons ?
      against the dealer to a reduction of a stated amount
      below the dealer's normal retail selling price of motor
      fuel;
                                                                     Action brought on 24 February 1995 by the Commission of
(d ) the supplier has supplied the motor fuel to the dealer at         the European Communities against the Italian Republic
      a price determined by an existing supply agreement;
      and                                                                                    (Case C-45/95 )
                                                                                              ( 95/C 119/09
(e) the dealer having accepted the coupon on the sale of the         An action against the Italian Republic was brought before
      motor fuel to the customer, presents it to the supplier        the Court of Justice of the European Communities on
      and is paid the stated amount.                                 24 February 1995 by the Commission of the European
                                                                     Communities, represented by Enrico Traversa, of its Legal
Is the supplier's taxable amount the price determined by the         Service, acting as Agent, with an address for service in
supply agreement or that price less the stated amount?               Luxembourg at the office of Georgios Kremlis, Wagner
                                                                     Centre, Kirchberg.
(!) OJ No L 145 , 13 . 6. 1977, p . 1 .                              The applicant claims that the Court should:
                                                                     1 , declare that, by enacting and maintaining in force a
                                                                          provision concerning value added tax which does not
 ---pagebreak--- 13 . 5 . 95             EN                Official Journal of the European Communities                                   No C 119/5
     exempt transfers of goods used wholly for an activity                 products listed in the Annex to Regulation (EEC)
     which is exempted, or goods which are in any event                    No 3835/90 (2)' also apply to imports from Spain of
     not deductible, the Italian Republic has failed to fulfil             tuna in olive oil ?
     its obligations under Article 13B (c ) of Council
     Directive 77/388/EEC ( J ) of 17 May 1977 ( Sixth VAT           ( b ) May the competent customs authorities, pursuant to
     Directive).                                                           Article 5(1 ) and (2 ) of Regulation (EEC) No 1697/79
                                                                           of 24 July 1979, as supplemented by Regulation (EEC)
Pleas in law and main arguments adduced in support:                        No 1715/90 ( 3 ) of 20 June 1990, and Article 2 of
                                                                           implementing Regulation ( EEC ) No 2164/91 (4 ) of
As regards 'supplies of goods used wholly for an activity                  23 July 1991 , initiate action for the recovery of customs
exempted under this Article . . . when these goods have not                duties which were not collected at the time of
given rise to the right to deduction', Article 10 of                       importation because they were regarded as having been
Presidential Decree No 633 omits to list among                             totally suspended as a result of an erroneous
approximately 30 examples which it gives of 'transactions                  interpretation of the Cpmmunity legislation in force,
exempt from duty' the situation envisaged at the beginning                 but which subsequently proved to be due on the basis of
of Article 13B (c) of the Directive .                                      a different interpretation of the same Community
                                                                           legislation provided by the Commission of the EEC
Âs regards 'supplies . . . of goods on the acquisition or                  after consulting its Legal Service, where the person
production of which, by virtue of Article 17(6 ), value added              liable observed all the provisions laid down by the rules
                                                                           in force as far as his customs declaration was concerned
tax did not become deductible', the corresponding provision
of Presidential Decree No 633/72 (third paragraph of                       and it does not appear that that person was aware that
Article 2 ) provides that transactions involving the goods                 the interpretation initially given to the Community
referred to in Article 19 of that Decree, such as motor                    legislation by the Italian authorities was erroneous ?
vehicles and pleasure craft, 'are not considered to be
transfers of goods'. That specification precludes the                (!)  OJ  No L  324,  26 . 11 . 1991 , p. 11 .
application of VAT to transactions of that kind, and thus            (2 ) OJ  No L  370,  31 . 12. 1990, p. 126 .
likewise fails to implement Article 13B (cj of the Sixth VAT         (3 ) OJ  No L  160 , 26 . 6 . 1990, p . 1 .
Directive correctly.                                                 (4 ) OJ  No L  201 , 24 . 7. 1991 , p . 16 .
(!) OJ No L 145, 13 . 6 . 1977, p. 1 .
                                                                     Appeal brought on 28 February 1995 by Unifruit Hellas
                                                                     EPE against the judgment delivered on 15 December 1994
References for preliminary rulings from the Tribunale di             by the Third Chamber of the Court of First Instance of the
Genova, Sezione Prima Civile, by orders of that court of             European Communities in Case T-489/93 between Unifruit
26 January 1995 and 16 February 1995 in the cases of                 Hellas EPE and the Commission of the European
                                                                                                    Communities
1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.                                           ( Case C-51/95 P
          Amministrazione delle Finanze dello Stato                                                ( 95/C 119/11 )
      (Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 and
                             C-60/95 )                               An appeal against the judgment delivered on 15 December
                           (95/C 119/10 )                             1 994 by the Third Chamber of the Court of First Instance of
                                                                     the European Communities in Case T-489/93 between
Reference has been made to the Court of Justice of the               Unifruit Hellas EPE and the Commission of the European
European Communities by orders of the Tribunale di                   Communities was brought before the Court of Justice of the
Genova, Sezione Prima Civile (District Court, Genoa, First           European Communities on 28 February 1995 by Unifruit
Civil Section) of 26 January 1995 and 16 February 1995 ,             Hellas EPE, established in Athens, represented by Elias
which were received at the Court Registry on 23 February             Souflero, of the Athens Bar, with an address for service in
1995 and 8 March 1 995, for preliminary rulings in the cases         Luxembourg at the Chambers of Aloyse May, 31 Grand
                                                                     Rue .
of 1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.
Amministrazione delle Finanze dello Stato on the following           The appellant claims that the Court should:
questions:
                                                                      1 . déclaré the appeal admissible;
(a ) Does the suspension of the residual customs duties
       applicable to imports from Spain into the Community
       of Ten in accordance with Article 75 ( 1 ) of the Act of      2, set aside the judgment appealed against to the extent to
       Accession of that country which was provided for by                 which it rejected the claim for damages;
       Article 1 ( 1 ) of Regulation (EEC ) No 3416/91 O of
       25 November 1991 as regards 'the agricultural                  3 , award costs to the appellant.