CELEX: C1996/016/21
Language: en
Date: 1996-01-20 00:00:00
Title: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 15 September 1995 in the case of Vereinigte Familapreß Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag (Case C-368/95)

No C 16/ 10              EN                   Official Journal of the European Communities                                    20 . 1 . 96
The appellant claims that the Court should :                             must Article 30 of the EC Treaty be interpreted as meaning
                                                                         that it precludes the application of legislation of Member
— set aside the judgment delivered by the Court of First                 State A prohibiting an undertaking established in Member
      Instance of the European Communities on 28 September               State B from selling in Member State A a periodical
      1995 in Case T-95/94 (*) and take all the ensuing legal            produced in Member State B, where that periodical contains
      steps, and, in particular, refer the case back to the Court        prize puzzle competitions or games which are lawfully
      of First Instance for a decision on the merits,                    organized in Member State B ?
— order the applicants in the proceedings before the Court
      of First Instance to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                         Reference for a preliminary ruling from the Audiencia
Infringement of Community law:                                           Nacional, Sala de lo Contencioso-Administrativo, Sección
                                                                         Octava, by orders of that court of 4 July 1995 , 13 September
                                                                         1995 and 15 November 1995 in the cases of Careda
— the Court of First Instance wrongly held that the                      SA, FEMARA and FACOMARE respectively against
      contested decision was a decision rejecting a complaint;           Administración General del Estado ( Ministerio de
      under Community law as it stands at present, that                                      Economía y Hacienda )
      category of decision does not exist in the field of State
      aid,                                                                       ( Cases C-3 70/95 , C-371/95 and C-372/95 )
                                                                                                     ( 96/C 16/22 )
— the Court of First Instance wrongly examined the
      statement of reasons in relation to the complainants and           Reference has been made to the Court of Justice of the
      the arguments and facts set out in their complaint; a              European Communities by orders of the Audiencia
      complainant who subsequently pleads, in the context of             Nacional (National High Court), Sala de lo
      an action for annulment, the inadequacy of the                     Contencioso-Administrativo ( Chamber for Contentious
      statement of reasons for a decision may only do so in the          Administrative Proceedings ), Sección Octava ( Eighth
      same capacity as any other applicant to whom the                   Section ) of 4 July 1995 , 13 September 1995 and
      decision is of direct and individual concern,                      15 November 1995 , which were received at the Court
                                                                         Registry on 30 November 1995 , for preliminary rulings in
— the Court of First Instance carried out, in the guise of a             the cases of Careda SA, FEMARA ( Federación Nacional de
      review of the statement of reasons, a review of the error          Operadores de Máquinas Recreativas y de Azar ) and
      of assessment, and imposed a new procedural                        FACOMARE (Asociación Española de Empresarios de
      obligation, namely an obligation to undertake an                   Máquinas Recreativas ) respectively against Administración
      exchange of views and arguments with the complainant.              General del Estado ( Ministerio de Economía y Hacienda ) on
      The grant to a complainant of a right of access to the             the following questions :
      documentation in a case in which there is no obligation
      to initiate the procedure provided for by Article 93 (2 ) of
                                                                         1.     does the concept of passing on the tax to the
      the EC Treaty constitutes an infringement of the
                                                                         consumer, within the meaning of the sixth Directive
      applicable rules on State aid.
                                                                         ( 77/388/EEC ) (*) of 17 May 1977 and of the rest of the
                                                                         Community legal order, and for determining the concept of
( ] ) OJ No C 299 , 11 . 11 . 1995 , p . 19 .                            turnover tax, require always and in every case the law
                                                                         concerning the tax in question to lay down expressly that the
                                                                         said tax may be passed on to the consumer or is it sufficient,
                                                                         on the other hand, if the tax can be deemed, on a reasonable
                                                                         interpretation of such law, to be actually included in the
                                                                         price paid by the consumer ?
Reference for a preliminary ruling from the Handelsgericht               2 . May a tax which is levied as a fixed charge of a large
Wien by order of that court of 15 September 1995 in the case             amount on the total turnover or revenue generated and
of Vereinigte FamilaprefS Zeitungsverlags- und vertriebs                 which takes account of such turnover, if it is ultimately paid
                 GmbH v. Heinrich Bauer Verlag
                                                                         by the consumer, be regarded as a turnover tax although
                          ( Case C-368/95 )                              there is no express record ( invoice ) of passing on the tax to
                             ( 96/C 16/21 )                              the consumer, the transactions in question being automatic,
                                                                         by the use of coins, and there being a price for use. As so
                                                                         framed, does it infringe Article 33 of the sixth Directive
Reference has been made to the Court of Justice of the                    ( 77/388/EEC ) on value added tax and is it therefore
European Communities by order of the Handelsgericht                      incompatible with that Directive ?
Wien ( Commercial Court, Vienna ) of 15 September 1995 ,
which was received at the Court Registry on 29 November
                                                                          0 ) OJ No L 145 , 13 . 6 . 1977, p. 1 .
 1995 , for a preliminary ruling in the case of Vereinigte
Familaprefê Zeitungsverlags- und vertriebs GmbH v.
Heinrich Bauer Verlag on the following question: