CELEX: C1996/016/20
Language: en
Date: 1996-01-20 00:00:00
Title: Appeal brought on 28 November 1995 by the Commission of the European Communities against the judgment delivered on 28 September 1995 by the Fourth Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-95/94 between the Chambre syndicale nationale des entreprises de transport de fonds et valeurs (Sytraval) and the Commission of the European Communities, supported by the French Republic (Case C-367/95 P)

20 . 1 . 96            EN                 Official Journal of the European Communities                                  No C 16/9
Reference for a preliminary ruling by the Hojesteret, by a           Question 2
decision of that court of 22 November 1995 in the case of
Landbrugsministeriet, EC Direktoratet v. Steff-Houlberg              Do the Community law principles that follow from the
Export I/S, Nowaco A/S, Nowaco Holding A/S and SMC of                case-law of the Court of Justice concerning reimbursement
                      31 December 1989                               of unduly-paid aid, according to which the interests of the
                                                                     Community are to be fully taken into account, preclude an
                        ( Case C-366/95                              exporter undertaking being considered to be in good faith,
                           96/C 16/ 19 )                             and thus not under an obligation to reimburse an amount of
                                                                     aid, if it is taken into consideration that the exporter
Reference has been made to the Court of Justice of the               undertakings did not reserve the right by agreement with the
European Communities by a decision of the Hosteret                   producer to carry out their own checks at the place of
( Supreme Court, Denmark ) of 22 November 1995 , which               manufacture in order to ensure that the products were
was received at the Court Registry on 28 November 1995 ,             manufactured in accordance with the declaration that the
for a preliminary ruling in the case of Landbrugsministeriet,        exporter would sign, when account is taken of the fact
EC-Direktoratet (Ministry of Agriculture's EC Department)            that:
v. Steff-Houlberg Export I/S, Nowaco A/S, Nowaco                     — the producer had export approval from the authority
Holding A/S and SMC of 31 December 1989 on the                            that made the payments,
following questions:
                                                                     — the exporter undertakings were trading undertakings
Question 1                                                                and the goods did not pass through them,
A. Do the Community law principles which result from the             — the exporter undertakings knew that the monitoring
     case-law of the Court of Justice concerning demands for              authority exercised day-to-day supervision at the place
                                                                          of manufacture, and
     reimbursement of sums unduly paid as aid, according to
     which the interests of the Community should be fully            — the price of finished products of equivalent type and
     taken into account, preclude national law from taking                description was the same from producers in Denmark
     into consideration, as criteria for excluding demands                and those abroad ?
     for reimbursement of unduly-paid aid:
                                                                     Question 3
     — the good faith of the aid recipients and thus the
          protection of legitimate expectations,                     May a third party, including an aid recipient, rely on
                                                                     possible negligence displayed by the monitoring authority
     — the fact that 5 to 10 years have elapsed since the            with the result that demands for reimbursement of refunds
          payment of the amounts of aid, and hence that it           already paid would be excluded on the basis of an overall
          would be particularly onerous for the aid recipients       assessment of the case ?
          to have to reimburse the aid now,
     — the reason for the undue payment of the aid being an
          exceptional circumstance in the form of serious            Appeal brought on 28 November 1995 by the Commission
          fraud and punishable offences on the part of a third       of the European Communities against the judgment
          party, and                                                 delivered on 28 September 1995 by the Fourth Chamber
                                                                     ( extended composition ) of the Court of First Instance of the
     — the fact that — as the exporter undertakings were             European Communities in Case T-95/94 between the
          aware — the monitoring authority exercised                 Chambre syndicale nationale des entreprises de transport de
          day-to-day supervision at the place of manufacture,        fonds et valeurs ( Sytraval) and the Commission of
          without discovering/affecting the fraud,                   the European Communities, supported by thé French
                                                                                               Republic
     — the fact that, over the whole period in which
          payments were made, the authority making the                                     Case C-367/95 P)
          payment was aware that the value of the monitoring                                  96/C 16/20 )
          system depended on the accuracy of the information
          supplied by the undertaking being monitored, but           An appeal against the judgment delivered on 28 September
          despite that fact omitted to ask to see recipes or the      1 995 by the Fourth Chamber (extended composition ) of the
          producer's accounts relating to the purchase of raw        Court of First Instance of the European Communities in
          materials,                                                 Case T-95/94 between the Chambre syndicale nationale des
                                                                     entreprises de transport de fonds et valeurs ( Sytraval ) and
     where the underlying principle is that the same criteria        the Commission of the European Communities, supported
     apply in connection with demands for reimbursement              by the French Republic, was brought before the Court of
     of purely national amounts of aid ?                             Justice of the European Communities on 28 November
                                                                      1995 by the Commission of the European Communities,
 B.  Would the answer be the same if account were taken in           represented by Jean-Louis Dewost, Director-General of its
     national law of the fact that there were no other               Legal Service, and Jean-Paul Kepenne and Michel Nolin, of
     circumstances which should have given the exporter               its Legal Service, acting as Agents, with an address for
     undertakings grounds for doubting that the product               service in Luxembourg at the office of Carlos GômeZ'de la
     qualified for refunds ?                                          Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- No C 16/ 10              EN                   Official Journal of the European Communities                                    20 . 1 . 96
The appellant claims that the Court should :                             must Article 30 of the EC Treaty be interpreted as meaning
                                                                         that it precludes the application of legislation of Member
— set aside the judgment delivered by the Court of First                 State A prohibiting an undertaking established in Member
      Instance of the European Communities on 28 September               State B from selling in Member State A a periodical
      1995 in Case T-95/94 (*) and take all the ensuing legal            produced in Member State B, where that periodical contains
      steps, and, in particular, refer the case back to the Court        prize puzzle competitions or games which are lawfully
      of First Instance for a decision on the merits,                    organized in Member State B ?
— order the applicants in the proceedings before the Court
      of First Instance to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                         Reference for a preliminary ruling from the Audiencia
Infringement of Community law:                                           Nacional, Sala de lo Contencioso-Administrativo, Sección
                                                                         Octava, by orders of that court of 4 July 1995 , 13 September
                                                                         1995 and 15 November 1995 in the cases of Careda
— the Court of First Instance wrongly held that the                      SA, FEMARA and FACOMARE respectively against
      contested decision was a decision rejecting a complaint;           Administración General del Estado ( Ministerio de
      under Community law as it stands at present, that                                      Economía y Hacienda )
      category of decision does not exist in the field of State
      aid,                                                                       ( Cases C-3 70/95 , C-371/95 and C-372/95 )
                                                                                                     ( 96/C 16/22 )
— the Court of First Instance wrongly examined the
      statement of reasons in relation to the complainants and           Reference has been made to the Court of Justice of the
      the arguments and facts set out in their complaint; a              European Communities by orders of the Audiencia
      complainant who subsequently pleads, in the context of             Nacional (National High Court), Sala de lo
      an action for annulment, the inadequacy of the                     Contencioso-Administrativo ( Chamber for Contentious
      statement of reasons for a decision may only do so in the          Administrative Proceedings ), Sección Octava ( Eighth
      same capacity as any other applicant to whom the                   Section ) of 4 July 1995 , 13 September 1995 and
      decision is of direct and individual concern,                      15 November 1995 , which were received at the Court
                                                                         Registry on 30 November 1995 , for preliminary rulings in
— the Court of First Instance carried out, in the guise of a             the cases of Careda SA, FEMARA ( Federación Nacional de
      review of the statement of reasons, a review of the error          Operadores de Máquinas Recreativas y de Azar ) and
      of assessment, and imposed a new procedural                        FACOMARE (Asociación Española de Empresarios de
      obligation, namely an obligation to undertake an                   Máquinas Recreativas ) respectively against Administración
      exchange of views and arguments with the complainant.              General del Estado ( Ministerio de Economía y Hacienda ) on
      The grant to a complainant of a right of access to the             the following questions :
      documentation in a case in which there is no obligation
      to initiate the procedure provided for by Article 93 (2 ) of
                                                                         1.     does the concept of passing on the tax to the
      the EC Treaty constitutes an infringement of the
                                                                         consumer, within the meaning of the sixth Directive
      applicable rules on State aid.
                                                                         ( 77/388/EEC ) (*) of 17 May 1977 and of the rest of the
                                                                         Community legal order, and for determining the concept of
( ] ) OJ No C 299 , 11 . 11 . 1995 , p . 19 .                            turnover tax, require always and in every case the law
                                                                         concerning the tax in question to lay down expressly that the
                                                                         said tax may be passed on to the consumer or is it sufficient,
                                                                         on the other hand, if the tax can be deemed, on a reasonable
                                                                         interpretation of such law, to be actually included in the
                                                                         price paid by the consumer ?
Reference for a preliminary ruling from the Handelsgericht               2 . May a tax which is levied as a fixed charge of a large
Wien by order of that court of 15 September 1995 in the case             amount on the total turnover or revenue generated and
of Vereinigte FamilaprefS Zeitungsverlags- und vertriebs                 which takes account of such turnover, if it is ultimately paid
                 GmbH v. Heinrich Bauer Verlag
                                                                         by the consumer, be regarded as a turnover tax although
                          ( Case C-368/95 )                              there is no express record ( invoice ) of passing on the tax to
                             ( 96/C 16/21 )                              the consumer, the transactions in question being automatic,
                                                                         by the use of coins, and there being a price for use. As so
                                                                         framed, does it infringe Article 33 of the sixth Directive
Reference has been made to the Court of Justice of the                    ( 77/388/EEC ) on value added tax and is it therefore
European Communities by order of the Handelsgericht                      incompatible with that Directive ?
Wien ( Commercial Court, Vienna ) of 15 September 1995 ,
which was received at the Court Registry on 29 November
                                                                          0 ) OJ No L 145 , 13 . 6 . 1977, p. 1 .
 1995 , for a preliminary ruling in the case of Vereinigte
Familaprefê Zeitungsverlags- und vertriebs GmbH v.
Heinrich Bauer Verlag on the following question: