CELEX: C2002/084/19
Language: en
Date: 2002-04-06 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 27 November 2001 in Case C-424/99: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil obligations — Directive 89/105/EEC — "Positive list" for the purposes of Article 6 of Directive 89/105/EEC — Time-limit for examination of an application for inclusion of a medicinal product on the list — Obligation to provide for a judicial remedy in the event of refusal)

6.4.2002                 EN                       Official Journal of the European Communities                                            C 84/11
                  JUDGMENT OF THE COURT                                            first consulting the committee provided for in Article 29 of the
                                                                                   directive. That provision also does not authorise a Member
                                                                                   State to adopt measures excluding goods from the system of
                           (Fifth Chamber)                                         deducting value added tax which contain no indication as to
                                                                                   their limitation in time and/or which form part of a package of
                           8 January 2002                                          structural adjustment measures whose aim is to reduce the
                                                                                   budget deficit and allow State debt to be repaid.
in Case C-409/99 (Reference for a preliminary ruling
from the Verwaltungsgerichtshof): Metropol Treuhand                          (1) OJ C 20 of 22.1.2000.
WirtschaftstreuhandgmbH v Finanzlandesdirektion für
Steiermark and between Michael Stadler and Finanz-
                landesdirektion für Vorarlberg (1)
(Sixth VAT Directive — Article 17(6) and (7) — Right to
deduct input VAT — Exclusions provided for under national
laws at the date of entry into force of the directive —
Exclusions for cyclical economic reasons — Consultation of                                     JUDGMENT OF THE COURT
          the Advisory Committee on value added tax)
                                                                                                       (Sixth Chamber)
                            (2002/C 84/18)
                                                                                                    of 27 November 2001
                    (Language of the case: German)
                                                                             in Case C-424/99: Commission of the European Communi-
(Provisional translation; the definitive translation will be published                          ties v Republic of Austria (1)
                    in the European Court Reports)
                                                                             (Failure by a Member State to fulfil obligations — Directive
                                                                             89/105/EEC — ‘Positive list’ for the purposes of Article 6 of
In Case C-409/99: reference to the Court under Article 234                   Directive 89/105/EEC — Time-limit for examination of an
EC by the Verwaltungsgerichtshof (Austria) for a preliminary                 application for inclusion of a medicinal product on the list
ruling in the proceedings pending before that court between                  — Obligation to provide for a judicial remedy in the event
Metropol Treuhand WirtschaftstreuhandgmbH and Finanz-                                                      of refusal)
landesdirektion für Steiermark and between Michael Stadler
and Finanzlandesdirektion für Vorarlberg, on the interpret-                                              (2002/C 84/19)
ation of Article 17(6) and (7) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —                                           (Language of the case: German)
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1),the Court (Fifth Chamber),
composed of: P. Jann, President of the Chamber, A. La Pergola,               (Provisional translation; the definitive translation will be published
L. Sevón (Rapporteur), M. Wathelet and C.W.A. Timmermans,                                       in the European Court Reports)
Judges, Advocate General: L.A. Geelhoed, Registrar: D. Louter-
man-Hubeau, Head of Division, has given a judgment on
8 January 2002, in which it has ruled:
                                                                             In Case C-424/99: Commission of the European Communities
                                                                             (Agent: J.C. Schieferer) v Republic of Austria (Agent: C. Pesen-
1.    The second subparagraph of Article 17(6) of Sixth Council              dorfer) — application for a declaration that, by not adopting
      Directive 77/388/EEC of 17 May 1977 on the harmonisation               or by not communicating to the Commission within the
      of the laws of the Member States relating to turnover taxes —          prescribed period the laws, regulations and administrative
      Common system of value added tax: uniform basis of assessment          provisions necessary to comply with Council Directive
      — precludes a Member State from excluding, after the entry             89/105/EEC of 21 December 1988 relating to the transparency
      into force of the Sixth Directive, expenditure relating to certain     of measures regulating the prices of medicinal products for
      motor vehicles from the right to deduct value added tax where,         human use and their inclusion in the scope of national health
      at the date of entry into force of that directive, that expenditure    insurance systems (OJ 1989 L 40, p. 8), the Republic of Austria
      gave rise to the right to deduct value added tax in accordance         has failed to fulfil its obligations under the EC Treaty — the
      with a consistent practice of the public authorities of that State     Court (Sixth Chamber), composed of: N. Colneric, President of
      on the basis of a ministerial circular.                                the Second Chamber, acting for the President of the Sixth
                                                                             Chamber, C. Gulmann, R. Schintgen, V. Skouris (Rapporteur)
2.    The first sentence of Article 17(7) of the Sixth Directive must        and J. N. Cunha Rodrigues, Judges; A. Tizzano, Advocate
      be interpreted as not authorising a Member State to exclude            General; H. A. Rühl, Principal Administrator, for the Registrar,
      goods from the system of deducting value added tax without             has given a judgment on 27 November 2001, in which it:
 ---pagebreak--- C 84/12                    EN                      Official Journal of the European Communities                                             6.4.2002
1.    Declares that, by not adopting within the prescribed period the         market in Belgium, France and the Netherlands (OJ 1996 L 99,
      laws, regulations and administrative provisions necessary to            p. 16), as amended by Commission Regulation (EC) No 841/96
      comply with the second sentence of Article 6(2) of Council              of 7 May 1996 (OJ 1996 L 114, p. 18),the Court (Fifth
      Directive 89/105/EEC of 21 December 1988 relating to the                Chamber), composed of: P. Jann, President of the Chamber,
      transparency of measures regulating the prices of medicinal             D.A.O. Edward, A. La Pergola, L. Sevón (Rapporteur) and
      products for human use and their inclusion in the scope of              M. Wathelet, Judges, Advocate General: F.G. Jacobs, Registrar:
      national health insurance systems, the Republic of Austria has          H.A. Rühl, Principal Administrator, has given a judgment on
      failed to fulfil its obligations under that article;                    8 January 2002, in which it has ruled:
2.    Dismisses the remainder of the application;
3.    Orders the parties to bear their own costs.                             1.   The Community provisions applicable to the common agricul-
                                                                                   tural policy in the beef and veal sector are to be interpreted as
                                                                                   meaning that, in response to information concerning a possible
                                                                                   link between bovine spongiform encephalopathy and Creutz-
(1) OJ C 6 of 8.1.2000.
                                                                                   feldt-Jakob disease in humans and to the bovine spongiform
                                                                                   encephalopathy crisis in the United Kingdom, the Member
                                                                                   States were entitled, under Article 8(1)(a) of Council Directive
                                                                                   90/425/EEC of 26 June 1990 concerning veterinary and
                                                                                   zootechnical checks applicable in intra-Community trade in
                                                                                   certain live animals and products with a view to the completion
                                                                                   of the internal market, as amended by Council Directive
                                                                                   92/118/EEC of 17 December 1992 laying down animal
                  JUDGMENT OF THE COURT                                            health and public health requirements governing trade in and
                                                                                   imports into the Community of products not subject to the said
                                                                                   requirements laid down in specific Community rules referred to
                             (Fifth Chamber)                                       in Annex A (I) to Directive 89/662/EEC and, as regards
                                                                                   pathogens, to Directive 90/425:
                             8 January 2002
                                                                                   —      to order the slaughter of young bovine animals originating
in Case C-428/99 (Reference for a preliminary ruling from                                 from the United Kingdom present in their territory and,
the College van Beroep voor het bedrijfsleven): H. van den
Bor BV v Voedselvoorzieningsin- en verkoopbureau (1)
                                                                                   —      since there could be serious grounds for believing that, in
(Agriculture — Combating bovine spongiform encephalo-                                     the absence of fair compensation, farmers might conceal
pathy — Powers of the Member States — Compensation for                                    the origin of animals in their possession in order to avoid
farmers following the slaughter of United Kingdom calves                                  their slaughter and the resulting financial loss, to adopt a
ordered during the bovine spongiform encephalopathy crisis                                compensation measure ancillary to the measure requiring
                             in March 1996)                                               slaughter of the animals.
                              (2002/C 84/20)
                                                                              2.   Even though the Member States had the power to adopt
                      (Language of the case: Dutch)                                compensation measures under Article 8(1)(a) of Directive
                                                                                   90/425, as amended by Directive 92/118, Community law,
                                                                                   in particular Commission Regulation (EC) No 717/96 of
(Provisional translation; the definitive translation will be published             19 April 1996 adopting exceptional support measures for the
                     in the European Court Reports)                                beef and veal market in Belgium, France and the Netherlands,
                                                                                   as amended by Commission Regulation (EC) No 841/96 of
                                                                                   7 May 1996, precluded the amount of compensation to farmers
                                                                                   from being determined by national provisions from the date
In Case C-428/99: reference to the Court under Article 234                         upon which that regulation became applicable.
EC by the College van Beroep voor het bedrijfsleven (Nether-
lands) for a preliminary ruling in the proceedings pending
before that court between H. van den Bor BV and Voedsel-
voorzieningsin- en verkoopbureau on the power of the
Member States to compensate cattle farmers and determine                      (1) OJ C 20 of 22.1.2000.
the amount of compensation due following the slaughter of
United Kingdom calves ordered during the bovine spongiform
encephalopathy crisis in March 1996 and on the interpretation
of Commission Regulation (EC) No 717/96 of 19 April 1996
adopting exceptional support measures for the beef and veal