CELEX: C2003/275/16
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 2 October 2003 in Case C-147/01 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Weber's Wine World Handels-GmbH, Ernestine Rathgeber, Karl Schlosser, Beta-Leasing GmbH v Abgabenberufungskommission Wien (Indirect taxation — Duty on sales of alcoholic beverages — Incompatibility with Community law — Recovery of duty)

C 275/10                EN                           Official Journal of the European Union                                             15.11.2003
                 JUDGMENT OF THE COURT                                            national court to ascertain, on the basis of a comprehensive
                                                                                  assessment of national law, whether it is actually the case that
                          (Fifth Chamber)                                         only claimants who bring proceedings based on domestic
                                                                                  constitutional law may rely on the ‘Anlaßfallwirkung’ and that
                                                                                  the rules governing repayment of charges held to be incompatible
                        of 2 October 2003
                                                                                  with domestic constitutional law are more favourable than those
                                                                                  applicable to actions relating to taxes held to be contrary to
in Case C-147/01 (Reference for a preliminary ruling                              Community law.
from the Verwaltungsgerichtshof): Weber’s Wine World
Handels-GmbH, Ernestine Rathgeber, Karl Schlosser,                           4.   The principle of effectiveness precludes national legislation or a
Beta-Leasing GmbH v Abgabenberufungskommission                                    national administrative practice which makes the exercise of the
                               Wien (1)                                           rights conferred by the Community legal order impossible in
                                                                                  practice or excessively difficult by establishing a presumption of
(Indirect taxation — Duty on sales of alcoholic beverages —                       unjust enrichment on the sole ground that the duty was passed
 Incompatibility with Community law — Recovery of duty)                           on to third parties.
                         (2003/C 275/16)
                                                                             (1) OJ C 173 of 16.6.2001.
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                                              JUDGMENT OF THE COURT
In Case C-147/01: Reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Austria) for a preliminary                                          of 30 September 2003
ruling in the proceedings pending before that court between
Weber’s Wine World Handels-GmbH, Ernestine Rathgeber,
Karl Schlosser, Beta-Leasing GmbH and Abgabenberufungs-                      in Case C-167/01 (Reference for a preliminary ruling
kommission Wien, on the interpretation of Article 5 of the EC                from the Kantongerecht te Amsterdam): Kamer van
Treaty (now Article 10 EC) and paragraph 3 of the operative                  Koophandel en Fabrieken voor Amsterdam, v Inspire Art
part of the judgment of the Court in Case C-437/97 EKW and                                                    Ltd (1)
Wein & Co [2000] ECR I-1157, the Court (Fifth Chamber),
composed of: M. Wathelet (Rapporteur), President of the                      (Articles 43 EC, 46 EC and 48 EC — Company formed in
Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and                       one Member State and carrying on its activities in another
S. von Bahr, Judges; F.G. Jacobs, Advocate General; M.-F.                    Member State — Application of the company law of the
Contet, Principal Administrator, for the Registrar, has given a              Member State of establishment intended to protect the
judgment on 2 October 2003, in which it has ruled:                                                    interests of others)
1.   The adoption by a Member State of rules, such as the Wiener                                       (2003/C 275/17)
     Abgabenordnung, fixing more restrictive procedural rules on
     recovery of sums levied but not due, in order to forestall the
     possible effects of a judgment of the Court holding that                                    (Language of the case: Dutch)
     Community law precludes the maintenance of a national duty,
     is contrary to Community law and, more particularly, to                 (Provisional translation; the definitive translation will be published
     Article 5 of the EC Treaty (now Article 10 EC) only in so far                              in the European Court Reports)
     as it is aimed specifically at that duty, a point which falls to be
     determined by the national court.
2.   The rules of Community law on the recovery of sums levied but           In Case C-167/01: Reference to the Court under Article 234
     not due are to be interpreted as meaning that they preclude             EC by the Kantongerecht te Amsterdam (Netherlands) for a
     national rules which refuse — a point which falls to be                 preliminary ruling in the proceedings pending before that
     determined by the national court — repayment of a charge                court between Kamer van Koophandel en Fabrieken voor
     incompatible with Community law on the sole ground that the             Amsterdam, and Inspire Art Ltd, on the interpretation of
     charge was passed on to third parties, without requiring that           Articles 43 EC, 46 EC and 48 EC, the Court, composed of:
     the degree of unjust enrichment that repayment of the charge            G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
     would entail for the taxable person be established.                     (Rapporteur), R. Schintgen and C.W.A. Timmermans (Presi-
                                                                             dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
3.   The principle of equivalence precludes national rules which lay         Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
     down less favourable procedural rules for claims for repayment          Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; S. Alber,
     of a charge which has been levied though not due from the               Advocate General; M.-F. Contet, Principal Administrator, for
     aspect of Community law than those applicable to similar                the Registrar, has given a judgment on 30 September 2003, in
     actions based on certain provisions of domestic law. It is for the      which it has ruled: