CELEX: C2000/163/33
Language: en
Date: 2000-06-10 00:00:00
Title: Case C-128/00: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 28 March 2000 in the appeal concerning Rudolf Resl, Josef Fleckl, Werner Karlinger, Grundverkehrsbeauftragter des Landes Salzburg and Grundverkehrslandeskommission des Landes Salzburg

C 163/18               EN                     Official Journal of the European Communities                                     10.6.2000
Reference for a preliminary ruling from the Bundesger-                   3. Is the list of grounds of invalidity in Article 15(1) of the
ichtshof by order of that court of 1 February 2000 in the                    Regulation exhaustive?
      case of Aktiebolaget Hässle v ratiopharm GmbH
                                                                             If not:
                         (Case C-127/00)                                     (a) Does it constitute a ground of invalidity that a
                                                                                  certificate was granted under the transitional provision
                                                                                  in Article 19(1) of the Regulation even though a first
                                                                                  authorisation to place the product on the market in
                         (2000/C 163/32)                                          the Community was already granted before the relevant
                                                                                  date for the Member State in which the certificate was
                                                                                  applied for and granted?
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof                    (b) In that case is the certificate completely invalid, or
(Federal Court of Justice) of 1 February 2000, which was                          should its duration merely be rectified accordingly?
received at the Court Registry on 3 April 2000, for a prelimi-
nary ruling in the case of Aktiebolaget Hässle v ratiopharm              4. If a breach of the transitional provision in Article 19(1) of
GmbH on the following questions on the interpretation of                     the Regulation does not constitute a ground of invalidity:
Articles 15 and 19(1) of Council Regulation (EEC) No 1768/92
of 18 June 1992 concerning the creation of a supplementary
protection certificate for medicinal products (OJ 1992 L 182,                May and must national law provide, as under Article 17(2)
p. 1):                                                                       of Regulation (EC) No 1610/96 of the European Parliament
                                                                             and of the Council of 23 June 1996 concerning the
                                                                             creation of a supplementary protection certificate for plant
1. (a) For application of the transitional provision in Article              protection products (3), for an appeal aimed at rectifying
        19(1) of the Regulation, in so far as that provision                 the duration of the protection certificate for a medicinal
        relates to the ‘first authorisation to place ... on the              product in the event of a breach of the transitional
        market ... in the Community’ before a specified relevant             provision in Article 19(1) of the Regulation?
        date, does that refer exclusively to an authorisation
        within the meaning of Directive 65/65/EEC (1) or
        Directive 81/851/EEC (2) as the case may be, or may              (1) OJ, English Special Edition 1965-1966, p. 20.
        another authorisation granted later (after the relevant          (2) OJ L 317 of 6.11.1981, p. 1.
        date) relating in particular to the prices of the medicinal      (3) OJ L 198 of 8.8.1996, p. 30.
        product also be material in this respect, if
        (aa) without such a further authorisation, for example
             one for price-law purposes, marketing of the
             medicinal product is not permissible under the law
             of the Member State concerned, or
        (bb)without such a further authorisation the medicinal
             product may in principle be marketed in the                 Reference for a preliminary ruling by the Unabhängiger
             Member State concerned, but effective marketing             Verwaltungssenat Salzburg by order of that court of
             is nevertheless not possible, in particular because         28 March 2000 in the appeal concerning Rudolf Resl, Josef
             the sickness funds reimburse the costs of the               Fleckl, Werner Karlinger, Grundverkehrsbeauftragter des
             medicinal product only if the further authorisation,        Landes Salzburg and Grundverkehrslandeskommission
             in particular for price-law purposes, has been                                     des Landes Salzburg
             granted or a determination of the price eligible for
             reimbursement has been made?
                                                                                                   (Case C-128/00)
    (b) Is the material authorisation for this purpose a first                                     (2000/C 163/33)
        authorisation in any Member State of the Community
        (as with Articles 8 and 13 of the Regulation) or the
        first authorisation in the Member State for which the            Reference has been made to the Court of Justice of the
        grant of the supplementary protection certificate has            European Communities by order of the Unabhängiger Verwal-
        been applied for?                                                tungssenat Salzburg of 28 March 2000, received at the Court
                                                                         Registry on 4 April 2000, for a preliminary ruling in the
                                                                         appeal concerning Rudolf Resl, Josef Fleckl, Werner Karlinger,
2. Is there doubt as to the validity of the transitional provision       Grundverkehrsbeauftragter des Landes Salzburg and Grundver-
    in Article 19(1) of the Regulation in so far as it lays down         kehrslandeskommission des Landes Salzburg on the following
    different relevant dates for different Member States?                question:
 ---pagebreak--- 10.6.2000              EN                    Official Journal of the European Communities                                      C 163/19
Are the provisions of Article 56 et seq. of the EC Treaty to be         Such conduct clearly conflicts with Community law, as
interpreted as precluding the application of Paragraphs 12 to           interpreted by the Court of Justice, and specifically
14 of the Salzburger Grundverkehrsgesetz, (Salzburg Land
Transfer Law) of 1997 in the version published in LGBl. No.
11/1999, whereby any person who wishes to acquire a                     (a) with the principles of effectiveness and judicial protection
building plot in the federal Land of Salzburg must comply                    of rights recognised by Community law;
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the
fundamental freedoms of the acquirer of title as guaranteed by          (b) with the prohibition of making the exercise of rights
the laws of the European Union has been infringed in this                    conferred by Community law excessively difficult;
case?
                                                                        (c) with the prohibition of rules of evidence which place on
                                                                             the taxpayer the onus of proving that the taxes unduly
                                                                             paid have not been passed on to others.
Action brought on 4 April 2000 by the Commission of
  the European Communities against the Italian Republic
                         (Case C-129/00)
                         (2000/C 163/34)
An action against the Italian Republic was brought before
Court of Justice on 4 April 2000 by the Commission of the               Action brought on 5 April 2000 by the Commission of
European Communities, represented by Enrico Traversa, Legal             the European Communities against the Federal Republic
Adviser, Acting as Agent, with an address for service in                                           of Germany
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Centre, Kirchberg.
                                                                                                 (Case C-130/00)
The applicant claims that the Court of Justice should:
(a) Declare that, by keeping in force the second paragraph of                                    (2000/C 163/35)
     Article 29 of Law No 428 of 29 December 1990 which, as
     interpreted and applied by the administrative and judicial
     authorities, lays down rules of evidence in relation to the        An action against the Federal Republic of Germany was
     passing on of taxes levied in breach of Community                  brought before the Court of Justice of the European Communi-
     provisions which in practice make exercise of the right to         ties on 5 April 2000 by the Commission of the European
     reimbursement of such taxes impossible or in any event             Communities, represented by Josef Christian Schieferer of the
     excessively difficult for the taxpayer and as such are             Legal Service of the Commission of the European Communi-
     incompatible with the legal principle laid down by the             ties, with an address for service in Luxembourg at the office of
     Court of Justice regarding the recovery of sums paid but           Carlos Gómez de la Cruz, Wagner Centre C 254 Kirchberg,
     not due, has failed to fulfil its obligations under the EC         Luxembourg.
     Treaty;
(b) Order the Italian Republic to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         1. Declare that, by failing to adopt and communicate to the
                                                                             Commission the necessary measures to implement into
The Commission considers that the specific way in which the                  domestic law European Parliament and Council Directive
Italian provision is interpreted by the Italian judiciary and in             97/52/EC (1) of 13 October 1997 amending Directives
particular the Corte Suprema di Cassazione ultimately places                 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the
on the taxpayer the burden of proving that he did not pass on                coordination of proposals for the award of public service
to his customers the amount of the unlawful tax, making it                   contracts, public supply contracts and public works con-
extremely difficult, if not impossible, to secure reimbursement              tracts respectively within the prescribed period the Federal
of the taxes. The Italian Administration has systematically,                 Republic of Germany has failed to fulfil its obligations
since the entry into force of Law No 428/90, opposed any                     under the EC Treaty and that directive.
application for reimbursement based on the illegality, under
Community law, of the levy or other charges made in
connection with customs operations or consumer taxes.                   2. Order the Federal Republic of Germany to pay the costs.