CELEX: C2000/273/15
Language: en
Date: 2000-09-23 00:00:00
Title: Case C-297/00: Action brought on 3 August 2000 by the Commission of the European Communities against the Grand-Duchy of Luxembourg

23.9.2000              EN                    Official Journal of the European Communities                                         C 273/9
Action brought on 20 July 2000 by the Commission of                     State universities and higher-education establishments are
the European Communities against the Federal Republic                   commissioned to carry out. It maintains that the argument
                           of Germany                                   advanced by the (German) Federal Government, to the effect
                                                                        that it is not possible in practice to draw a distinction between
                         (Case C-287/00)                                research activities and teaching activities (the latter being
                                                                        exempt from tax under Article 13(A)(1)(i), is based — as is
                                                                        apparent from the situation in other Member States — on
                         (2000/C 273/13)                                domestic factors which cannot be invoked by a Member State.
An action against the Federal Republic of Germany was                   (1) OJ L 145 of 13 June 1977, p. 1.
brought before the Court of Justice of the European Communi-
ties on 20 July 2000 by the Commission of the European
Communities, represented by Günter Wilms and Kilian Gross,
of its Legal Service, with an address for service in Luxembourg
at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.
                                                                        Reference for a preliminary ruling by the Tribunal de
The applicant claims that the Court should:                             grande instance de Paris (Third Chamber — Second
                                                                        section) by decision of that court of 23 June 2000 in the
(1) declare that, by exempting the research activities of State              case of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet
      universities and higher education establishments from
      turnover tax pursuant to Paragraph 4(21a) of the Umsatz-
      steuergesetz (Law on Turnover Taxes) of 12 December                                        (Case C-291/00)
      1996, the Federal Republic of Germany has failed to fulfil
      its obligations under Article 2 of the Sixth Council                                       (2000/C 273/14)
      Directive 77/388/EEC (1) of 17 May 1977 on the harmon-
      ization of the laws of the Member States relating to              Reference has been made to the Court of Justice of the
      turnover taxes — Common system of value added tax:                European Communities by order of the Tribunal de grande
      uniform basis of assessment, as most recently amended;            instance de Paris (Regional Court, Paris), received at the Court
                                                                        Registry on 23 June 2000, for a preliminary ruling in the case
(2) order the Federal Republic of Germany to pay the costs.             of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet on the following
                                                                        question:
Pleas in law and main arguments                                         Does the prohibition contained in Article 5(1) of Directive
                                                                        89/104 of 21 December 1988 to approximate the laws of the
The exemption from turnover tax of research activities which            Member States relating to trade marks (1) only cover identical
State universities and higher-education establishments are              reproduction — with no element being added or omitted —
commissioned to carry out, pursuant to Paragraph 4(21a) of              of the sign or signs constituting a mark, or can it extend to:
the Umsatzsteuergesetz (Law on Turnover Taxes), in the
version thereof introduced by Paragraph 4(5) of the Umsatz-             (1) reproduction of the distinctive feature of a mark compo-
steuer-Änderungsgesetz (Law amending the legislation on                      sed of a number of elements?
turnover taxes) of 12 December 1996 (BGBI. 1996, Part I,
p. 1851 et seq.), is contrary to Article 2(1) of the Sixth              (2) reproduction of all the constituent elements of the mark
Directive. In the context of research activities which they are               where new elements are added?
commissioned to undertake (i.e. research projects normally
based on an agreement specifying inter alia the type and scope          (1) OJ L 40 of 11.2.1989, p. 1.
of the services and consideration to be furnished), State
universities and higher-education establishments provide ser-
vices and are thus, in principle, taxable persons within the
meaning of Article 4 of the Sixth Directive. According to
Article 5 of the directive, bodies governed by public law are
not, however, to be regarded as taxable persons in so far as
they are engaged in activities as public authorities.
                                                                        Action brought on 3 August 2000 by the Commission of
                                                                        the European Communities against the Grand-Duchy of
In undertaking research which they have been commissioned                                          Luxembourg
to carry out, State universities and higher-education establish-
ments are clearly not engaged in activities as public authorities.
                                                                                                 (Case C-297/00)
On the contrary, such activities are based on a private-law
commercial relationship between the university or higher-
education establishment concerned and the party by whom                                          (2000/C 273/15)
the research in question is commissioned. In the Commission’s
view, the effect of Part A of Article 13 of the Sixth Directive is      An action against the Grand-Duchy of Luxembourg was
to preclude exemption from tax in respect of research which             brought before the Court of Justice of the European Communi-
 ---pagebreak--- C 273/10               EN                      Official Journal of the European Communities                                    23.9.2000
ties on 3 August 2000 by the Commission of the European                   European Communities in Case T-72/99 between K. Meyer
Communities represented by Bernard Mongin, a member of its                and the Commission of the European Communities was
Legal Service, acting as Agent, with an address for service in            brought before the Court of Justice of the European Communi-
Luxembourg at the office of Carlos Gómez de la Cruz, a                   ties on 7 August 2000 by Karl Meyer represented by Jean-
member of the same service, Wagner Centre, Kirchberg.                     Dominique des Arcis, Advocate, with an address for service in
                                                                          Luxembourg at the office of Horst Pakowski, Ambassador of
The Commission of the European Communities claims that                    the Federal Republic of Germany.
the Court should:
                                                                          The appellant claims that the Court should:
1.    Declare that, by failing to implement within the pre-
      scribed period the laws, regulations and administrative             —     uphold his appeal against the judgment handed down
      provisions, including any penalties, necessary to comply                  and dated and declare it to be well founded;
      with Council Directive 98/35/EC of 25 May 1998
      amending Directive 94/58/EC on the minimum level of                 —     overturn that judgment, annul it and determine the
      training for the seafarers (1), the Luxembourg Government                 matter anew as the first instance court should have done;
      has failed to fulfil its obligations under the Treaty and
      that directive;                                                     —     order the Commission of the European Communities to
                                                                                pay the costs including those incurred before the Court
2.    Order the Luxembourg Government to pay the costs.                         of First Instance.
Pleas in law and main arguments                                           Pleas in law and main arguments
By reason of the mandatory nature of the provisions in Articles           —     Procedural defect:
1(10) and 226(3) EC, the Member States are required to take
the necessary measures to transpose directives into domestic                    The judgment delivered does not contain the slightest
law before expiry of the period prescribed for. The period,                     mention of the wholly irregular manner in which the
which is laid down in Article 2(1), of the directive expired on                 procedure was conducted or of the Commission’s unac-
25 May 1999 without the Grand-Duchy of Luxembourg                               ceptable conduct in, after having denied all knowledge of
having adopted the necessary measures.                                          the contested drafts, submitting 20 voluminous docu-
                                                                                ments at the last minute. By its refusal to examine all
(1) OJ L 172 of 17.06.1998, p. 1.                                               aspects of this case, and to collect all the existing
                                                                                documentation before giving its decision, the Court of
                                                                                First Instance manifestly deprived the appellant of his
                                                                                right to defend himself and of legal certainty. The
                                                                                judgment handed down also infringes the principle of the
                                                                                right to a hearing because the Court of First Instance
                                                                                manifestly failed to comply with its obligation of strict
Appeal brought on 7 August 2000 by Karl Meyer against                           impartiality.
the judgment delivered on 27 June 2000 by the Third
Chamber of the Court of First Instance of the European                    —     Confused, biased and contradictory reasoning.
Communities in Case T-72/99 between K. Meyer and the
         Commission of the European Communities                           —     Infringement of general principles of law (the protection
                                                                                of legitimate expectations, the prohibition on retro-
                        (Case C-301/00 P)                                       actively withdrawing or deferring acts which confer rights
                                                                                or benefits on individuals, the rights of the defence and
                         (2000/C 273/16)                                        the right to legal certainty).
An appeal against the judgment delivered on 27 June 2000 by               —     Infringement of higher rules on fundamental rights
the Third Chamber of the Court of First Instance of the                         protecting individuals.