CELEX: C2000/302/36
Language: en
Date: 2000-10-21 00:00:00
Title: Case C-314/00: Reference for a preliminary ruling by the Oberster Gerichtshof, Republic of Austria by order of that court of 11 May 2000 in the case of Kraft Jacobs Suchard Österreich GesmbH against 1. Eduard Mitsche, 2. Maria Mitsche, 3. Peter Roman

21.10.2000              EN                      Official Journal of the European Communities                                       C 302/19
4.    In so far as necessary, remit the case to the Court of First         2)   If Question 1 is answered in the affirmative:
      Instance for the procedure to be continued;
                                                                                (a)   Is Commission Regulation (EEC) No 1984/83 of
5.    Order the defendants and respondents to bear the costs                          22 June 1983 on the application of Article 85 (3) of
      of the proceedings.                                                             the Treaty to categories of exclusive purchasing
                                                                                      agreements (OJ 1983 L 173, p. 5) also generally
                                                                                      applicable to agreements of the kind described in
Pleas in law and main arguments                                                       Question 1?
—     Misinterpretation of the concept of ‘direct concern’ within               (b) Is that regulation also applicable if, prior to onward
      the meaning of the fourth paragraph of Article 230 EC:                          selling, the roast coffee purchased is further proces-
      The contested judgment wrongly states that a directive is                       sed for sale as a coffee drink?
      not, before the adoption of national measures and
      independently of them, such as to affect directly the legal          3)   If Question 2 is answered in the affirmative:
      situation of economic operators. With respect to the
      fourth paragraph of Article 230 EC, what matters is                       Is Article 3(d) of Regulation No 1984/83 to be construed
      merely whether the directive as such has a direct effect                  as meaning that agreements of the kind described in
      on the legal situation of an undertaking (without waiting                 Question 1, under which it is the contracting parties’
      until it is transposed by the Member States).                             estimation that the total sales quantity will be supplied
                                                                                within a period of less than five years, are also covered by
—     Incorrect assessment of the effects of the directive on the               the exemption under the regulation or is that the
      appellants’ situation, and hence inadequate reasoning in                  case only if there are also objective grounds for such
      the contested judgment: Directive 98/43 as such already                   expectations?
      constitutes a process which amounts to an expropriation
      (the possibility of advertising for the existing brand               4)   Is Article 85(1) and (2) of the EC Treaty to be interpreted
      ceases, so that its value for diversification products falls              as meaning that an agreement of the kind described in
      to zero). This affects the appellants’ legal situation, not               Question 1 is also invalid inasmuch as, in the event of
      merely their ‘factual situation’.                                         premature termination of the agreement, it provides for
                                                                                repayment of a rebate by the seller paid to the purchaser
                                                                                on commencement of the agreement determined by
                                                                                reference to total contractually agreed sales, and do the
                                                                                aforementioned provisions require that there should be
                                                                                no claim for repayment under that head?
Reference for a preliminary ruling by the Oberster
Gerichtshof, Republic of Austria by order of that court of
11 May 2000 in the case of Kraft Jacobs Suchard Öster-
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mits-
                        che, 3. Peter Roman                                Reference for a preliminary ruling from the Bundesfi-
                                                                           nanzhof, by order of that court of 25 May 2000 in the
                          (Case C-314/00)                                  case of Rudolf Maierhofer against Finanzamt Augsburg-
                                                                                                          Land
                          (2000/C 302/36)
                                                                                                    (Case C-315/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof                                           (2000/C 302/37)
(Supreme Court), Republic of Austria, of 11 May 2000,
received at the Court Registry on 21 August 2000, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the case of Kraft Jacobs Suchard Öster-             European Communities by order of the Bundesfinanzhof
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mitsche,                  (Federal Finance Court), of 25 May 2000, received at the Court
3. Peter Roman on the following questions:                                 Registry on 21 August 2000, for a preliminary ruling in the
                                                                           case of Rudolf Maierhofer against Finanzamt Augsburg-Land
1)    Is Article 85(1) (now Article 81(1) EC) of the EC Treaty             on the following questions:
      also applicable to purchasing agreements under which,
      over a period of several years, the goods agreed to be               1.   Does the term ‘letting of immovable property’ in
      purchased are to be called down and paid for by the                       Article 133(b) of Directive 77/388/EEC (1) cover the pro-
      purchaser at current ‘list price’, albeit there is a stipulation          vision for consideration of a building constructed from
      for delivery of minimum annual quantities in line with                    prefabricated components which is to be removed follow-
      the buyer’s overall requirements, subject to a specified                  ing the termination of the contract and may be re-used
      permissible variation?                                                    on another site?