CELEX: C2003/031/10
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-419/02: Reference for a preliminary ruling by the High Court of Justice (England and Wales) (Chancery Division) by order of that court dated 8 November 2002, in the case of 1) BUPA Hospitals Ltd and 2) Goldsborough Developments Ltd against the Commissioners of Customs and Excise

C 31/6                   EN                          Official Journal of the European Union                                         8.2.2003
       75/442/EEC. Furthermore, those authorities have never                 Reference for a preliminary ruling by the High Court of
       denied that strong odours emanating from that farm                    Justice (England and Wales) (Chancery Division) by order
       reach nearby housing. Also, the incorrect arrangements                of that court dated 8 November 2002, in the case of
       for handling the slurry, which is emptied into a pit which            1) BUPA Hospitals Ltd and 2) Goldsborough Develop-
       is too small for the size of the exploitation, and for                ments Ltd against the Commissioners of Customs and
       disposing of carcasses results in the improper dumping                                              Excise
       of slurry and remains of animals in the surrounding area.
       Finally, the Spanish authorities have not submitted any
       description of the inspections carried out to check                                           (Case C-419/02)
       whether Directive 75/442/EEC is being complied with.
       Although the pig farm in question is substantial, counting                                     (2003/C 31/10)
       with 2 779 pigs and more than 600 suckling pigs, and is
       located 600 metres from the river Antas, which the
       Spanish authorities have declared an area of Community
       interest, it has not been the subject of an impact
       assessment as required by Directive 85/337/EEC.                       Reference has been made to the Court of Justice of the
                                                                             European Communities by an order of the High Court
                                                                             of Justice (England and Wales) (Chancery Division) dated
—      The waste-water of the agglomeration of Vera, with a                  8 November 2002, which was received at the Court Registry
       population of more than 10 000, which is deposited in                 on 20 November 2002, for a preliminary ruling in the case of
       an area which ought to have been designated as sensitive,             1) BUPA Hospitals Ltd and 2) Goldsborough Developments
       should be treated more stringently than merely by means               Ltd and the Commissioners of Customs and Excise, on the
       of secondary treatment. Clear evidence of the insufficient            following questions:
       tratement of Vera’s waste-water is the fact that the
       quantity of the chemical oxygen demand (COD) in the
       sample analysed at the request of the Commission is of
       353 mgO 2/l, which is three times greater than the
       maximum authorised for effluent from a waste treatment                Qu est ion 1
       station.
                                                                             Having regard to the relevant circumstances, the relevant
—      By decree of 2 March 1999, the Spanish authorities                    transactions and the position of the vendor companies how is
       declared the sensitive areas of the Autonomous Com-                   the expression ‘economic activity’ within the meaning of
       munity of Andalucia, including, in respect of Almeria, the            Article 4(1) and (2) of Directive 77/388/EEC on VAT ( 1) (the
       coastal lagoons of the Aguas and Antas rivers, whose                  Directive) to be interpreted?
       waters are eutrophic, with a high concentration of
       nitrates. Consequently, pursuant to Article 3(2) of Direc-
       tive 91/676/EEC, the Spanish authorities should have
       designated the area which drains into those waters as a
       vulnerable area.                                                      Qu est ion 2
( 1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975          Having regard to the relevant circumstances, relevant trans-
     L 194, p. 39).                                                          actions, and the position of the vendor companies how is the
( 2) Council Directive 91/156/EEC of 18 March 1991 amending                  expression ‘supply of goods’ in Article 5(1) of the Directive to
     Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).                    be interpreted?
( 3) Council Directive 85/337/EEC of 27 June 1985 on the assessment
     of the effects of certain public and private projects on the
     environment (OJ 1985 L 175, p. 40).
( 4) Council Directive 97/11/EC of 3 March 1997 amending Directive
     85/337/EEC on the assessment of the effects of certain public and
     private projects on the environment (OJ 1997 L 73, p. 5).               Qu est ion 3
( 5) Council Directive 80/68/EEC of 17 December 1979 on the
     protection of groundwater against pollution caused by certain
                                                                             a)   Is there a principle of abuse of rights and/or abuse of the
     dangerous substances (OJ 1980 L 20, p. 43).
( 6) Council Directive 91/271/EEC of 21 May 1991 concerning urban                 law which (independently of the interpretation given to
     waste-water treatment (OJ 1991 L 135, p. 40).                                the Directive) is capable of precluding the right to deduct
( 7) Council Directive 91/676/EEC of 12 December 1991 concerning                  input tax?
     the protection of waters against pollution caused by nitrates from
     agricultural sources (OJ 1991 L 375, p. 1).
                                                                             b)   If so, in what circumstances would it apply?
                                                                             c)   Would it apply in circumstances such as those found by
                                                                                  the Tribunal?
 ---pagebreak--- 8.2.2003              EN                        Official Journal of the European Union                                            C 31/7
Q ues ti o n 4                                                          how are Article 17 of the Directive and the rules on deduction
                                                                        to be interpreted? (With reference to paragraph e), if the law
                                                                        does not change in the way described the purchasing compani-
                                                                        es are entitled to terminate their contracts with the vendor
Does it make any difference to the answers to questions 1 to 3          companies and claim refunds of the prices paid. In the relevant
above if payment is made in respect of the relevant transactions        transactions the contracts between the purchasing companies
at a time when any onward supply of the goods would have                and the vendor companies contain provisions permitting such
been an exempt supply with refund of VAT at the preceding               terminations.)
stage as permitted by Article 28(2)(a) of the Directive?
                                                                        Qu est ion 7
Q ues ti o n 5
                                                                        The Tribunal found (at paragraph 89 of the Decision) that
                                                                        ‘none of the individuals in a position to take decisions for
How is the Directive to be interpreted with particular reference        [BMSL and Gatwick Park]... had any motive or purpose of
to the following questions? In circumstances such as the                substance other than to carry through the VAT avoidance
relevant circumstances and with reference to transactions such          scheme.’ The Appellants have, in their Notice of Appeal to the
as the relevant transactions:                                           High Court, challenged that finding of fact. If that finding of
                                                                        fact were to be set aside on appeal would it make any, and if
a)    should supplies be treated as having been made by the             so, what difference to the answers to questions 1 to 6 above
      outside suppliers to the purchasing companies with no             inclusive?
      supplies being made to or by the vendor companies? or
                                                                        (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
b)    should supplies be treated as having been made by the                  harmonization of the laws of the Member States relating to
      outside suppliers to the vendor companies with no                      turnover taxes — Common system of value added tax: uniform
      supplies being made by the vendor companies to the                     basis of assessment (OJ L 145, 13.06.77, p. 1).
      purchasing companies?
Q ues ti o n 6
                                                                        Action brought on 21 November 2002 by the
                                                                        Commission of the European Communities against the
In circumstances where each vendor company, in the course                                         Hellenic Republic
of an economic activity, makes supplies to a purchasing
company and:                                                                                       (Case C-420/02)
a)    the purchasing companies have entered into agreements                                         (2003/C 31/11)
      with the vendor companies to be supplied with goods;
b)    the goods are invoiced and paid for in advance of delivery;
                                                                        An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 21 No-
c)    VAT is charged on the advance payment in accordance               vember 2002 by the Commission of the European Communi-
      with the second sub-paragraph of Article 10(2) of the             ties, represented by Minas Konstantinidis, of its Legal Service.
      Directive;
                                                                        The Commission claims that the Court should:
d)    the goods are to be used by the purchasing companies in
      making supplies which, if made at the time of the
      payment, would have been exempt supplies with a right             —      declare that, by failing to adopt the necessary measures
      to refund at the preceding stage, but                                    to ensure that the disposal or recovery of waste will be
                                                                               carried out without endangering human health, without
                                                                               risk to water, air, soil, plants and animals and without
e)    each purchasing company intends to take delivery of the                  causing a nuisance through noise or odours, and by
      goods under the agreements only if the law changes in                    granting a permit which does not contain the necessary
      such a way that the purchasing company’s use of the                      information, the Hellenic Republic has failed to fulfil its
      goods will be a use in making exempt supplies without a                  obligations under Articles 4 and 9 of Directive 75/442/
      right of refund                                                          EEC (1) on waste as amended by Directive 91/156/EEC (2);