CELEX: C2003/289/27
Language: en
Date: 2003-11-29 00:00:00
Title: Case C-412/03: Reference for a preliminary ruling by the Regeringsrätten by order of that Court of 29 September 2003 in the case of Hotel Scandic Gåsabäck AB against Riksskatteverket

C 289/14               EN                          Official Journal of the European Union                                          29.11.2003
Reference for a preliminary ruling by the Regeringsrätten                  Action brought on 3 October 2003 by the Commission of
by order of that Court of 29 September 2003 in the case                    the European Communities against the Hellenic Republic
  of Hotel Scandic Gåsabäck AB against Riksskatteverket
                                                                                                      (Case C-415/03)
                          (Case C-412/03)
                                                                                                     (2003/C 289/28)
                         (2003/C 289/27)
                                                                           An action against the Hellenic Republic was brought before
                                                                           the Court of Justice of the European Communities on 3 Octo-
                                                                           ber 2003 by the Commission of the European Communities,
                                                                           represented by D. Triantafillou and J.L. Buendia Sierra, of its
                                                                           Legal Service.
Reference has been made to the Court of Justice of the                     The applicant claims that the Court should:
European Communities by order of the Regeringsrätten
(Supreme Administrative Court) of 29 September 2003,
received at the Court Registry on 3 October 2003, for a                    —     declare that, by failing to take, within the time-limit laid
preliminary ruling in the case of Hotel Scandic Gåsabäck AB                      down, all the measures necessary for repayment of the
against Riksskatteverket on the following questions:                             aid found to be unlawful and incompatible with the
                                                                                 common market (except the IKA (Social Security Insti-
                                                                                 tution) contributions) in accordance with Article 3 of the
                                                                                 Commission Decision of 11 December 2002 on aid
1.    In the event that the Regeringsrätten finds, when the case                 granted by Greece to Olympic Airways (notified under
      is decided, that the company’s supplies are supplies of                    document number C(2002) 4831) or, in any event, by
      goods, are Article 2 and Article 5(6) of the Sixth Value                   failing to inform the Commission of the measures taken
      Added Tax Directive (1) to be interpreted as precluding                    pursuant to Article 4, the Hellenic Republic has failed to
      provisions in the legislation of a Member State under                      fulfil its obligations under Articles 3 and 4 of that decision
      which withdrawal of goods means that a taxable person                      and the EC Treaty;
      transfers goods to a third party for a consideration less
      than the purchase value of the goods or of similar goods
      or, if no such value is available, the cost price.                   —     order the Hellenic Republic to pay the costs.
2.    In the event that the Regeringsrätten finds, when the
      case is decided, that the company’s supplies are food                Pleas in law and main arguments
      dispensing services, are Article 2 and Article 6(2)(b) of
      the Sixth Value Added Tax Directive to be interpreted as
      precluding provisions in the legislation of a Member State
      under which withdrawal of goods means that a taxable                 The Commission decision obliges Greece to take all the
      person performs, arranges performance or in some other               necessary measures so as to recover from Olympic Airways
      way provides a service for himself or his staff for private          both the sum of EUR 41 000 000 (which relates to the
      purposes or for other non-commercial purposes, where                 restructuring aid set out in Article 1 of the decision) and the
      the service is provided for a consideration less than the            aid referred to in Article 2 of the decision, and to inform the
      cost of performing the service.                                      Commission within two months of the measures adopted.
                                                                           That period for compliance with the decision expired on
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the               13 February 2003.
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform
    basis of assessment (OJ L 145 of 13.6.1977, p. 1).
                                                                           In accordance with settled case-law, the only justification
                                                                           which may be put forward by a Member State in the context
                                                                           of the procedure under Article 88(2) EC is that it is absolutely
                                                                           impossible to implement the decision properly. However, on
                                                                           expiry of the abovementioned time-limit, the Greek authorities
                                                                           refused to implement the decision, invoking other grounds.