CELEX: C1997/108/18
Language: en
Date: 1997-04-05 00:00:00
Title: Action brought on 6 February 1997 by the Commission of the European Communities against the French Republic (Case C-49/97)

No C 108/ 10              EN                  Official Journal of the European Communities                                         5 . 4 . 97
in the initial correspondence, or in bilateral talks, or in the                supply' in Article 11 ( A) ( 3 ) ( b ) of the Sixth Council
arbitration procedure, that the inspection system gave rise                    Directive ( 77/388/EEC ) of 17 May 1977 on the
to the significant risks it claims. Moreover, the inspection                   harmonization of the laws of the Member States
reports pursuant to Regulation (EEC ) No 618/90 were                           relating to turnover taxes — Common system of
based on an erroneous interpretation of Article 3 in                           value added tax: uniform basis of assessment (') to be
conjunction with Annex II of that regulation. The                              interpreted to cover the whole cost of the redemption
requirements placed by the Commission on the inspection                        goods ?
procedure in Germany were based, as least in so far as
their contents were concerned, on Article 17 of Regulation
( EEC) No 2456/93 , a legal basis which at the time in                   2.    Are the redemption goods to be treated as ' supplies
question, namely 1992, was not yet applicable . The                            made for consideration' for the purposes of Article 5
accusation that the German inspection system was                               ( 6 ) of that Directive ?
unreliable can be seen to be untenable merely by looking
at the actual economic circumstances, since an exchange
of good quality procedure for lesser quality produce,                    3.    If the redemption goods are provided otherwise than
which the Commission regards as possible, would                                for consideration or 'free of charge', is Article 5 ( 6 )
inevitably have led to complaints from purchasers, who                         to be interpreted as requiring that the provision of
would have been defrauded in those circumstances . The                         the redemption goods be treated as a supply for
 German Government maintains that its position is further                      consideration notwithstanding that such provision is
supported by the final report of the arbitration body.                          for business purposes ?
 (') OJ No L 323 , 13 . 12 . 1996 , p . 26 .                             4.     Do any of the foregoing questions require a different
 ( 2 ) OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    answer
                                                                                ( a ) where all the vouchers redeemed for any item of
                                                                                       redemption goods were obtained on purchases of
                                                                                       premium goods from the promoter of the scheme,
 Reference for a preliminary ruling by the VAT and Duties
                                                                                ( b ) where those vouchers were all obtained on
 Tribunal, London, by direction of that court of 15 January
  1997, in the case of Kuwait Petroleum (GB ) Ltd against                              purchases of premium goods from a trader who
               the Commissioners of Customs and Excise                                 was a participating dealer in the scheme, or
                             (Case C-48/97 )
                                                                                 ( c ) where the vouchers redeemed were obtained
                              97/C 108/ 17 )                                           partly on purchases of premium goods from the
                                                                                       promoter and partly on purchases of premium
                                                                                       goods from one or more participating dealers ?
  Reference has been made to the Court of Justice of the
  European Communities by a direction of the VAT and
  Duties Tribunal, London, of 15 January 1997, which was                  5.     If the answer to question 3 is 'No', is the United
  received at the Court Registry /on 6 February 1997, for a                      Kingdom entitled pursuant to Article 27 of the Sixth
  preliminary ruling in the case of Kuwait Petroleum ( GB )                      Council Directive and under the derogation obtained
  Ltd against the Commissioners of Customs and Excise, on                        by it in 1977 to impose an output tax charge on the
  the following questions:                                                       promoter which is based on the cost to the promoter
                                                                                  of the redemption goods in addition to the output tax
                                                                                  included in the full retail price of the premium
  Where a supplier of goods operates a business promotion                         goods ?
   scheme, under which, in outline :
                                                                          H OJ No L 145, 13 . 6 . 1977, p. 1 .
   (i)     the promoter provided redemption goods for business
           purposes in accordance with the terms of the scheme;
   ( ii ) for no payment in money at the point of redemption;
                                                                          Action brought on 6 February 1997 by the Commission of
    ( iii) against the redemption of vouchers to which a                     the European Communities against the French Republic
           purchaser of premium goods became entitled by
           paying the full retail price of those goods without                                       ( Case C-49/97)
           making any identifiable monetary payment for the                                            ( 97/C 108/ 18 )
           vouchers .
     1.     Is the expression 'price discounts and rebates allowed        An action against the French Republic was brought before
            to the customer and accounted for at the time of               the Court of Justice of the European Communities on
 ---pagebreak--- 5 . 4 . 97               EN                       Official Journal of the European Communities                                 No C 108/ 11
6 February 1997 by the Commission of the European                            References to the Court for preliminary rulings by the
Communities, represented by Richard Wainwright,                              Pretura Circondariale di Trento by orders of 3 February
Principal Legal Adviser, acting as Agent, and J. J. Evrard,                   1997 in the proceedings pending before that court
of the Brussels Bar, with an address for service in                          between 1 . Epifanio Viscido, 2. Mauro Scandella and
Luxembourg at the office of Carlos Gomez de la Cruz,                         Others, and 3 . Massimiliano Terragnolo and Others and
Wagner Centre, Kirchberg.                                                                             Ente Poste Italiane
                                                                                            (Case C-52/97, C-53/97 and C-54/97)
                                                                                                           ( 97/C 108/19 )
The applicant claims that the Court should:
                                                                             Reference has been made to the Court of Justice of the
                                                                             European Communities by orders of the Pretura Circonda­
                                                                             riale di Trento (Magistrate's Court for the District of
— declare that by maintaining in force two circulars                         Trento ), which was received at the Court Registry on
       allowing the maximum levels for nitrates and                          7 February 1997, for preliminary rulings in the cases of
       pesticides prescribed by Article 7 of Council Directive               1 . Epifanio Viscido, 2 . Mauro Scandella and Others, and
       80/778/EEC of 15 July 1980 relating to the quality of                 3 . Massimiliano Terragnolo and Others and Ente Poste
       water intended for human consumption ( l ) to be                      Italiane, on the following question:
       exceeded, the French Republic has failed to fulfil its
       obligations under that Directive,                                     ( a ) whether a legal provision which relieves a particular
                                                                                   public economic entity from the obligation of
                                                                                   complying with the generally applicable legislation
                                                                                   concerning fixed-term employment contracts falls
— order the French Republic to pay the costs .                                     within the scope of ' aid granted by a Member State or
                                                                                   through State resources in any form whatsoever';
                                                                             ( b ) whether, if question ( a ) is answered in the affirmative,
Pleas in law and main arguments adduced in support:                                an aid of that kind should be subject to the
                                                                                   preliminary examination procedure under Article 93
                                                                                   ( 3 ) of the Treaty;
Council Directive 80/778/EEC is implemented in French                        (c ) whether, where that procedure has not been followed,
law by, inter alia, Decree No 89-3 of 3 January 1989 on                            the prohibition of an aid of that kind can be regarded
water intended for human consumption other than natural                            as directly applicable within the domestic law of the
mineral waters, as amended by Decrees No 90-330 and                                Italian State;
No 91-257 ( 2). That statutory system is complemented by
two circulars from the Minister for Health and Social                        ( d ) whether, in the event of question (c ) being answered in
Security (Ministre de la solidarité, de la santé et la protec­                     the affirmative, such a prohibition may be relied on in
tion sociale ), addressed to all regional and departmental                         a dispute between the public economic entity and an
prefects ( 3 ). Those circulars are incompatible with the                          individual who complains of failure to apply to him
Directive in that, first, they permit levels of nitrates,                          the general legislation concerning fixed-term
atrazine and simazine which significantly exceed the                               employment in order to secure conversion of his
maximum permissible concentrations laid down by the                                employment relationship into one of indeterminate
Directive. Secondly, the circulars create a situation of legal                     duration and/or compensation for damage .
uncertainty in the conditions for applying Directive 80/
778/EEC in French territory; they imply that the result
required by the Directive has not been and cannot be
achieved, and that neither consumers, nor operators                          Appeal brought on 10 February 1997 by Association Inter­
entrusted with the production or distribution of water for                   nationale des Utilisateurs de Fils de Filaments Artificiels et
human consumption, nor the authorities in charge of                          Synthetiques et de Soie Naturelle (Aiuffass ) and Apparel,
ensuring water quality are able to ascertain the precise                     Knitting & Textiles Alliance (AKT) against the judgment
extent of their respective rights and obligations. Finally,                  delivered on 12 December 1996 by the Fifth Chamber,
the French Government's arguments calling into question                      Extended Composition, of the Court of First Instance of
the policy foundation of the Directive in relation to the                    the European Communities in Case T-3 80/94 between
requirements of public health are both irrelevant as                         Association Internationale des Utilisateurs de Fils de Fila­
regards the obligations imposed by Article 189 of the EC                     ments Artificiels et Synthetiques et de Soie Naturelle ( Aiuf­
Treaty and unfounded in fact.                                                fass ) and Apparel, Knitting & Textiles Alliance (AKT), on
                                                                             the one hand, and Commission of the European
                                                                             Communities, supported by the United Kingdom of Great
(') OJ No L 229 , 30 . 8 . 1980, p. 11 .
                                                                                          Britain and Northern Ireland, on the other
( 2 ) JORF, 4. 1 . 1989, 13 . 4. 1990 and 8 . 3 . 1991 .
(') DSG/PGE/ 1.D. No 717 — triazine content of water intended                                           ( Case C-55/97 P)
      for human consumption; DGS/PGE/1.D. No 1325 — nitrate
                                                                                                           ( 97/C 108/20 )
      content of water intended for human consumption.
                                                                             An appeal against the judgment delivered on 12 December
                                                                              1996 by the Fifth Chamber, Extended Composition, of the