CELEX: C1999/071/09
Language: en
Date: 1999-03-13 00:00:00
Title: Appeal brought on 17 December 1998 by Mediocurso - Estabelecimento de Ensino Particular SA against the judgment delivered on 15 September 1998 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/96 and T-181/96 Mediocurso - Estabelecimento de Ensino Particular Lda v Commission of the European Communities (Case C-462/98 P)

13.3.1999             EN                 Official Journal of the European Communities                                   C 71/5
of 26 November 1998, received at the Court Registry on              The appellant claims that the Court of Justice should:
17 December 1998, for a preliminary ruling in the case of
Sutterlüty Gesellschaft mbH & Co v the Vorarlberg Lan-
desregierung, with the following parties joined in the              1) Set aside the contested judgment on the ground that it
proceedings: the town of Dornbirn, the municipality of                  is incorrect in law in that the principle requiring a
Bludesch, the market municipality of Rankweil and the                   prior hearing was misapplied, without prejudice to the
municipality of Lochau on the following question:                       part of the judgment which upheld in part
                                                                        Mediocurso's application in Case T-180/96;
In the event that the Court of Justice of the European
Communities answers the questions referred to it in the
order of 18 December 1997, Nos 97/16/0221 and 0021,                 2) Consequently, in view of the Commission's breach of
(Case C-437/97 (1)) at least partially in the affirmative, the          the same principle, annul Commission Decisions (C)
following further question is referred for a preliminary                1185 and (C) 1186, both of 14 August 1996, which
ruling:                                                                 were the subject of the proceedings in Cases T-180/96
                                                                        and T-181/96 respectively;
Is Section 82(2) of the Vorarlberg Abgabenverfahrens-
gesetz (Vorarlberg Law of Tax Procedure), which allows a            3) If it should reject the claims made in the foregoing
taxable person to correct a declaration made under                      paragraphs, set aside the contested judgment to the
Section 82(1) of that Law only if he does so within one                 extent to which it upholds the decisions adopted by
month of submitting the declaration, and also sets a                    the Commission, in both cases, which treat as
deadline of one month from the submission of the                        ineligible, in their entirety, both the expenditure
declaration for the taxable person to apply for the amount              relating to the remuneration paid to the teaching staff
of duty to be determined by notice of assessment altering               (sub-heading 14.3.1.a) and the expenditure relating to
the amount arrived at by the taxable person himself                     the VAT        chargeable on that remuneration
(except in cases where the requirements for reopening                   (sub-heading 14.3.13), this plea in annulment being
proceedings are met), incompatible with the case-law of                 based on:
the Court of Justice of the European Communities
(judgment in Case C-312/93 Peterbroeck, Van
Campenhout & Cie SCS v Belgium [1995] ECR I-4599)                       Ð material inaccuracy of the findings of fact made by
and thus with the application of Community law, in                          the Court of First Instance;
particular the implementation of the procedure under
Article 177 of the Treaty?
                                                                        Ð error of law deriving from inconsistency of the
                                                                            grounds of the judgment and breach of the
(1) OJ C 72, 7.3.1998, p. 6.
                                                                            principle of proportionality;
                                                                    4) Consequently, for the same reasons, annul
                                                                        Commission Decisions (C) 1185 and (C) 1186, both of
                                                                        14 August 1996, to the extent to which they treat as
Appeal brought on 17 December 1998 by Mediocurso Ð                      ineligible, in their entirety, both the expenditure
Estabelecimento de Ensino Particular SA against the                     relating to the remuneration paid to the teaching staff
judgment delivered on 15 September 1998 by the Third                    (sub-heading 14.3.1.a) and the expenditure relating to
Chamber of the Court of First Instance of the European                  the VAT        chargeable on that remuneration
Communities in Joined Cases T-180/96 and T-181/96                       (sub-heading 14.3.13);
Mediocurso Ð Estabelecimento de Ensino Particular Lda v
        Commission of the European Communities
                      (Case C-462/98 P)                             5) Annul paragraph 4 of the operative part of the
                                                                        contested judgment to the extent to which it requires
                        (1999/C 71/09)                                  Mediocurso to pay its own costs in Case T-180/96;
An appeal against the judgment delivered on 15 September            6) Annul paragraph 5 of the operative part of the
1998 by the Third Chamber of the Court of First Instance                contested judgment to the extent to which it requires
of the European Communities in Joined Cases T-180/96                    Mediocurso to pay its own costs in Case T-181/96.
and T-181/96 Mediocurso Ð Estabelecimento de Ensino
Particular Lda v Commission of the European
Communities was brought before the Court of Justice of
the European Communities on 17 December 1998 by                     Pleas in law and main arguments adduced in support:
Mediocurso Ð Estabelecimento de Ensino Particular SA,
represented by Carlos Botelho Moniz, of the Lisbon Bar,
with an address for service in Luxembourg at the                    Ð First, the applicant maintains that the Court of First
Chambers of Aloyse May, 31 Grand-Rue.                                   Instance erred in law in considering, on the basis of
 ---pagebreak--- C 71/6                EN                 Official Journal of the European Communities                                   13.3.1999
    the facts found by it, that the applicant must be              (c) Is the Combined Nomenclature (Council Regulation
    deemed to have been given the possibility of effectively             2658/87 (1) (as amended)) to be interpreted as
    expressing its views on the envisaged reductions in                  requiring that those goods set out in the schedule
    assistance, in accordance with the judgment in                       attached hereto be classified as Automatic data
    Lisrestal v Commission'.                                             processing machines and units thereof; magnetic or
                                                                         optical readers, machines for transcribing data onto
                                                                         data media in coded form and machines for processing
                                                                         such data, not elsewhere specified or included . . .'
Ð Second, the applicant maintains, with regard to
                                                                         under tariff heading 8471 either (i) post 1 January
    sub-heading 14.3.1a (remuneration of the teaching
                                                                         1996, or (ii) between 28 April 1993 and 31 December
    staff) and sub-heading 14.3.13 (taxes and charges),
                                                                         1995, or (iii) for both periods of time?
    that it is clear from the documentary evidence in the
    file that the findings of fact made by the Court of First
    Instance in relation to those sub-headings are
    incorrect.                                                      (d) If the answer to any part of question (c) is in the
                                                                         negative in respect of one or more of the goods set out
                                                                         in the schedule attached hereto, is the Combined
Ð Third, the applicant maintains that the incorrectness                  Nomenclature to be interpreted as requiring that such
    of the findings of fact made by the Court of First                   goods to be classified, ante 1 January 1996, as
    Instance       concerning       sub-headings      14.3.1a            Electrical apparatus for line telephony or line
    (remuneration of the teaching staff) and sub-heading                 telegraphy, including such apparatus for carriercurrent
    14.3.13 (taxes and charges) led the Court of First                   line systems . . .' under tariff heading 8517 or, post
    Instance misapply the law to its case, in breach of the              1 January 1996, as Electrical apparatus for line
    principle of proportionality and to give contradictory               telephony or line telegraphy, including line telephone
    grounds for the judgment.                                            sets with cordless handsets and telecommunication
                                                                         apparatus for carriercurrent line systems or for digital
                                                                         line systems; video phones . . .' under tariff heading
                                                                         8517?
                                                                    (1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                        tariff and statistical nomenclature and on the Common
                                                                        Customs Tariff (OJ L 256, 7.9.1987, p. 1).
Reference for a preliminary ruling by the Appeal
Commissioners, Dublin, by request of that court of
15 December 1998, in the case of Cabletron Systems Ltd
             against the Revenue Commissioners
                       (Case C-463/98)
                        (1999/C 71/10)
                                                                    Reference for a preliminary ruling from the Landesgericht
                                                                    für Zivilrechtssachen Wien, by order of that court of
                                                                    28 October 1998 in the case of Westdeutsche Landesbank
Reference has been made to the Court of Justice of the              Girozentrale against Friedrich Stefan, intervener: Republic
European Communities by a request of the Appeal                                                of Austria
Commissioners, Dublin, of 15 December 1998, which was
received at the Court Registry on 17 December 1998, for                                     (Case C-464/98)
a preliminary ruling in the case of Cabletron Systems Ltd                                    (1999/C 71/11)
against the Revenue Commissioners, on the following
questions:
                                                                    Reference has been made to the Court of Justice of the
(a) Is Commission Regulation (EC) No 1638/94 of 5 July              European Communities by order of the Landesgericht für
    1994 (OJ L 172, 7.7.1994, p. 5) concerning the                  Zivilrechtssachen Wien (Regional Civil Court, Vienna), of
    classification of certain goods in the Combined                 28 October 1998, received at the Court Registry on
    Nomenclature, valid insofar as it classifies under CN           18 December 1998, for a preliminary ruling in the case of
    Code 8517 82 90 the goods respectively described at             Westdeutsche Landesbank Girozentrale against Friedrich
    items 1, 2 and 3 of the annex to the said Regulation?           Stefan, intervener: Republic of Austria, on the following
                                                                    questions:
(b) Is Commission Regulation (EC) No 1165/95 of 23 May
    1995 (OJ L 117, 24.5.1995, p. 15), concerning the               (a) Does a refusal to allow a mortgage to be created to
    classification of certain goods in the Combined                      cover an existing foreign-currency debt (in this case in
    Nomenclature, valid insofar as it classifies under CN                German marks (DM)) constitute a restriction on the
    Code 8517 82 90 the goods described at item 4 of the                 movement of capital and payments compatible with
    annex to the said Regulation?                                        Article 73b of the EC Treaty?'