CELEX: C1999/020/37
Language: en
Date: 1999-01-23 00:00:00
Title: Action brought on 26 November 1998 by the Commission of the European Communities against the Federal Republic of Germany (Case C-427/98)

C 20/22                EN                     Official Journal of the European Communities                                 23.1.1999
on 26 November 1998 by the Commission of the                             Action brought on 26 November 1998 by the Commission
European Communities, represented by Dimitrios                           of the European Communities against the Federal
Gouloussis, Commission Legal Adviser, with an address                                         Republic of Germany
for service in Luxembourg at the Office of Carlos Gómez
                                                                                                (Case C-427/98)
de la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                                                 (1999/C 20/37)
The Commission claims that the Court should:
                                                                         An action against the Federal Republic of Germany was
Ð declare that, by imposing for the benefit of the                       brought before the Court of Justice of the European
    Lawyers' Fund and the Lawyers' Social Fund                           Communities on 26 November 1998 by the Commission
    additional charges on the formation of public limited                of the European Communities, represented by Enrico
    companies and limited liability companies, on the                    Traversa, a Member of the Commission's Legal Service
    promulgation and alteration of their memoranda and                   and Dr Andreas Buschmann, a national expert seconded
    articles of association and on the increase of their                 to the Commission's Legal Service, acting as Agents, with
    capital, the Hellenic Republic has failed to fulfil its              an address for service in Luxembourg at the Office of
    obligations under the EC Treaty and in particular                    Carlos Gómez de la Cruz, a member of the Commission's
    under Articles 7 and 10 of Directive 69/335/EEC (1), as              Legal Service, Wagner Centre C-254, Luxembourg.
    amended by Council Directive 85/303/EEC (2) of
    10 June 1985;
                                                                         The applicant claims that the Court should:
Ð order the Hellenic Republic to pay the costs.
                                                                         (1) Find that the Federal Republic of Germany failed to
Pleas in law and main arguments adduced in support:                            fulfil its obligations under Article 11 of the Sixth
                                                                               Council Directive 77/388/EEC (1) of 17 May 1977 on
                                                                               the harmonisation of the laws of the Member States
Since the total indirect tax burden in Greece on the                           relating to turnover taxes Ð Common system of
formation of a company, on the promulgation and                                value added tax; uniform basis of assessment, in that
alteration of its memorandum and articles of association                       it failed to adopt any provisions enabling the basis of
and on an increase in its capital exceeds by far the upper                     taxation to be adjusted where price reduction
limit laid down in Article 7 of Directive 69/335/EEC, as                       coupons have been granted.
amended by Directive 85/303/EEC, the provisions of
Greek law which impose the duties at issue are
inconsistent with Community law.
                                                                         (2) Order the Federal Republic of Germany to pay the
                                                                               costs.
Contrary to the assertions of the Hellenic Republic, the
pertinent charges:
                                                                         Pleas in law and main arguments adduced in support:
(1) cannot be described as employers' contributions,
     because there is no link of an insurance nature
     between the persons liable to pay them and the                      In the Commission's view, German law infringes the
     insurance bodies entitled to the payments;                          principle of neutrality of turnover tax as expressed in
                                                                         Article 11 Part A 1(a) and Part C 1 of the Sixth Directive,
                                                                         in that it does not permit a taxpayer (such as a
(2) do not cease to be indirect duties because (a) they are              manufacturer) who, upon presentation of a coupon,
     not paid as income into the State budget in its                     reimburses a part of the final sale price of products, which
     narrow sense but into the budget of public legal                    he does not deliver to his purchasers direct, to reduce his
     persons, (b) the purpose for which they are levied is               basis of taxation accordingly. The German Government's
     fixed by law and (c) they are imposed irrespective of               administrative notice of 15 April 1998, following the
     the tax-paying capacity of the persons liable to pay                judgment of the Court of Justice in Elida Gibbs (2),
     them;                                                               distinguishes between reimbursements to the end user (in
                                                                         exchange for a price reimbursement coupon') and
                                                                         reimbursements to the retailer (in exchange for a price
(3) are not in the nature of consideration or fees for the               reduction coupon'). However, ultimately neither the
     services provided by the lawyers.                                   recipient of the reimbursement nor the specific name given
                                                                         to the coupon is material since, in the Commission's view
                                                                         (based on the Elida Gibbs judgment), the law should treat
(1) OJ, English Special Edition 1969 (II), p. 412.
(2) OJ L 156, 15.6.1985, p. 23.                                          both variants alike. The basis of taxation applied to a
                                                                         taxpayer (such as a manufacturer) who grants
                                                                         reimbursements on the final price of his products to
                                                                         stimulate sales should be reduced by the amount
 ---pagebreak--- 23.1.1999             EN                  Official Journal of the European Communities                                    C 20/23
reimbursed (less turnover tax), regardless of which                  Pleas in law and main arguments adduced in support:
purchaser receives the reimbursement (taxpayer or end
user) and how many people there are in the chain of
purchasers. There is no need to adjust the provisional               The mandatory nature of the provisions of the third
turnover since it is the retailer who is taxed on the net            paragraph of Article 189 and of the first paragraph of
value of the coupons which the end user presents to                  Article 5 of the EC Treaty is such as to oblige Member
obtain a price reduction when purchasing the goods. Thus             States to adopt the measures necessary for the
the applicable law on turnover tax in the Federal Republic           implementation of directives within the time-limit
of Germany, and in particular Paragraphs 10(1) and 17(1)             prescribed therein, and to communicate those measures to
of the Law on Turnover Tax, as it is to be applied                   the Commission forthwith. The time-limit in question
pursuant to the German Government's binding                          expired on 21 November 1996 but the Kingdom of
administrative notice of 15 April 1998, infringes Article 11         Belgium has not adopted the necessary measures.
Part 1 1(a) and Article 11 Part C 1 of the Sixth Directive,
since those provisions of that Directive give expression to
the principle that turnover taxes are to be neutral in that          (1) OJ L 319, 12.12.1994, p. 14.
the end result should not be that a taxpayer who, because
he has to pay tax on a higher amount than he received for
his supply, ultimately bears part of the turnover tax.
(1) OJ L 145, 13.6.1977, p. 1.
(2) Judgment in Case C-317/94 [1996] ECR I-5368.
                                                                     Action brought on 30 November 1998 by the Commission
                                                                     of the European Communities against the Grand Duchy of
                                                                                               Luxembourg
                                                                                             (Case C-430/98)
                                                                                              (1999/C 20/39)
Action brought on 30 November 1998 by the Commission
of the European Communities against the Kingdom of                   An action against the Grand Duchy of Luxembourg was
                            Belgium                                  brought before the Court of Justice of the European
                       (Case C-429/98)                               Communities on 30 November 1998 by the Commission
                                                                     of the European Communities, represented by Pieter Jan
                        (1999/C 20/38)                               Kuijper, Legal Adviser, and Nicola Yerrell, a national civil
                                                                     servant on secondment to its Legal Service, acting as
                                                                     Agents, with an address for service in Luxembourg at the
                                                                     office of Carlos Gómez de la Cruz, Wagner Centre,
An action against the Kingdom of Belgium was brought                 Kirchberg.
before the Court of Justice of the European Communities
on 30 November 1998 by the Commission of the
European Communities, represented by Frank Benyon,                   The Commission of the European Communities claims
Legal Adviser, acting as Agent, with an address for service          that the Court should:
in Luxembourg at the Office of Carlos Gómez de la Cruz,
Wagner Centre, Kirchberg.
                                                                     (a) declare that, by failing to adopt and/or to
                                                                          communicate to the Commission the laws,
                                                                          regulations and administrative measures necessary in
The Commission of the European Communities claims                         order to comply with Council Directive 94/45/EC of
that the Court should:                                                    22 September 1994 on the establishment of a
                                                                          European Works Council or a procedure in
                                                                          Community-scale undertakings and Community-scale
                                                                          groups of undertakings for the purposes of informing
(1) declare that, by failing to adopt the laws, regulations
                                                                          and consulting employees (1), alternatively by failing
      and administrative measures necessary in order to
                                                                          to ensure the introduction by the social partners of
      comply with Council Directive 94/56/EC of
                                                                          the necessary measures by voluntary agreement, and
      21 November 1994 establishing the fundamental
                                                                          thus by failing to adopt and/or to communicate to
      principles governing the investigation of civil aviation
                                                                          the Commission the measures necessary in order to
      accidents and incidents (1), alternatively by failing to
                                                                          guarantee the results to be achieved under that
      communicate the measures taken in order to comply
                                                                          directive, the Grand Duchy of Luxembourg has failed
      therewith, the Kingdom of Belgium has failed to fulfil
                                                                          to fulfil its obligations under the EC Treaty; and
      its obligations under that directive;
                                                                     (b) order the Grand Duchy of Luxembourg to pay the
(2) order the Kingdom of Belgium to pay the costs.                        costs.