CELEX: C2002/044/15
Language: en
Date: 2002-02-16 00:00:00
Title: Case C-492/01 P: Appeal brought on 19 December 2001 by Dieckmann & Hansen GmbH against the judgment delivered on 23 October 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-155/99 between Dieckmann & Hansen GmbH and the Commission of the European Communities

C 44/8                  EN                      Official Journal of the European Communities                                      16.2.2002
1.    Do Articles 20(2) and 17 of the Sixth Directive (1) or the           The appellant claims that the Court should:
      principles, in European law, of the protection of legitimate
      expectations and legal certainty preclude adjustment —
      in a case involving no fraud or abuse or change of                   (1) set aside the judgment of the Court of First Instance of
      planned use as referred to in paragraphs 50 and 51 of the                  the European Communities of 23 October 2001;
      judgment of the Court of Justice in the Schloßstrasse
      case (2) — of the VAT deducted by a taxable person,
      which he has paid on an item of (immovable) property                 (2) order the respondent to pay to the appellant
      supplied to him with a view to the letting (subject to                     DEM 8 725 320,45 together with interest at 8 % per
      VAT) of that property, for the years of the period of                      annum from the date on which the action was brought;
      adjustment under Article 20(2) which have not yet
      elapsed at the time of the cessation of that right of option
      (in this case, in fact, 1 January 1996) for the sole reason          (3) declare that the respondent is liable to compensate the
      that, as a result of a legislative amendment, the taxable                  appellant for all further damage suffered by it as a result
      person is no longer entitled to waive exemption for that                   of its having had to dismiss its employees and close down
      letting?                                                                   its business with effect from 31 December 1999 on
                                                                                 account of the ban on the importation of Kazakh caviar;
2.    If the answer to the first question is in the affirmative, is
      the legislative amendment inapplicable only in respect of
      the deducted tax mentioned in Question 1, or is it also              (4) order the Commission to pay the costs.
      inapplicable — until the period of adjustment has expired
      — in respect of the taxed status (subject to the provisions
      of Article 13(C) of the Sixth Directive) of the letting
      referred to in Question 1?
                                                                           Pleas in law and main arguments
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
    harmonization of the laws of the Member States relating to
                                                                           —     The Court of First Instance wrongly assumed that, for the
    turnover taxes — Common system of value added tax: uniform
    basis of assessment (OJ 1977, L 145, p. 1).                                  purposes of adopting Decision 1999/244/EC (1), which
(2) Judgment of 8.6.2000 in Case C-396/98.                                       deleted Kazakhstan from the list of third countries, the
                                                                                 Commission enjoyed a wide discretion, with the result
                                                                                 that only a sufficiently serious breach of the principle of
                                                                                 sound administration protecting the appellant could
                                                                                 render the Commission liable to pay compensation.
                                                                                 The decision in question is based on the authorisation
                                                                                 conferred by Article 2(3) of Council Decision 95/408/EC,
                                                                                 which lays down, according to the relevant conditions
                                                                                 and content, and in conjunction with Article 2(2), specific,
                                                                                 restricted criteria to be observed by the Commission.
Appeal brought on 19 December 2001 by Dieckmann &                                The Commission is required to ascertain whether the
Hansen GmbH against the judgment delivered on 23                                 authorities of the third country concerned have given
October 2001 by the Fifth Chamber of the Court of First                          guarantees at least equivalent to those provided for by
Instance of the European Communities in Case T-155/99                            Council Directive 91/493/EEC or, as the case may be,
between Dieckmann & Hansen GmbH and the Com-                                     whether those guarantees continue to exist.
            mission of the European Communities
                                                                                 Findings made in respect of such guarantees must reflect
                         (Case C-492/01 P)                                       concrete circumstances which are specified in Council
                                                                                 Directive 91/943 and concern conditions for the pro-
                                                                                 duction and placing on the market of the products to be
                           (2002/C 44/15)                                        imported from the third country in question, especially
                                                                                 as regards the maintenance of hygiene standards for the
                                                                                 protection of consumers. Those conditions are to be
                                                                                 specifically determined. Agricultural or economic con-
                                                                                 siderations cannot be taken into consideration in such
An appeal against the judgment delivered on 23 October 2001                      determination.
by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-155/99 between Dieckmann
& Hansen GmbH and the Commission of the European                           —     In any event, the Court of First Instance disregarded the
Communities was brought before the Court of Justice of the                       fact that the Commission manifestly and significantly
European Communities on 19 December 2001 by Dieckmann                            exceeded any discretion which it may have had: although
& Hansen GmbH, represented by H.-J. Rabe, Rechtsanwalt, of                       the veterinary inspectors instructed by the Commission
Messrs Latham & Watkins Schön Nolte, of Warburgstrasse 50,                       stated in their report that their assessment of the ‘general
D-20354 Hamburg.                                                                 situation in Kazakhstan so far as concerns the veterinary
 ---pagebreak--- 16.2.2002               EN                   Official Journal of the European Communities                                         C 44/9
      legislation in force, current health policy and veterinary              —     requiring bio-medical analysis laboratories estab-
      supervision’ also applied to caviar, their findings in fact                   lished in other Member States to have their place of
      related exclusively to the production of horse meat and                       business on French territory as a condition for
      pike fillets. The Commission made a proposal to the                           obtaining the requisite operating authorisation; and
      Veterinary Committee without having itself carried out
      any examination or appraisal and without submitting the
      inspectors’ report.                                                     —     precluding any reimbursement of the cost of bio-
                                                                                    medical analyses carried out by bio-medical analysis
                                                                                    laboratories established in another Member State,
—     The Court of First Instance further disregarded the fact
      that, in addition, the Commission clearly violated the
      principle of the protection of legitimate expectations, to              the French Republic has failed to fulfil its obligations
      the detriment of the appellant: according to Commission                 under Articles 43 and 49 of the EC Treaty; and
      Decision 1999/136 of 28 January 1999, published in the
      Official Journal of 18 February 1999, the importation of          2.    order the French Republic to pay the costs.
      caviar from Kazakhstan continued to be permitted (List II).
      Thereafter, at the beginning of March 1999, the appellant
      concluded contracts for the supply of caviar from Kazakh-
      stan for the 1999 season. However, in January 1999, at
      all events before 18 February 1999, the Commission was            Pleas in law and main arguments
      already aware of the results of the inspection, as set out
      in the report, which prompted it to submit to the
      Veterinary Committee, for consideration at its meeting            —     Restriction of Article 43 EC by virtue of the fact that the
      on 23 February 1999, a draft providing for deletion from                requisite administrative authorisation for operating a bio-
      List II. In view of the small number of importers affected,             medical analysis laboratory (Article L 757 of the Public
      it would have been easy for the Commission to inform                    Health Code) can only be delivered by the Préfet for the
      those undertakings of the results of the inspection visit,              département in which the laboratory operates (Article 15
      which were available to it in January, and of the                       of Decree No 76-1004). That provision precludes the
      consequences which those results might have for the                     setting up of an establishment having the status of an
      importation of caviar.                                                  office or agency. The Commission does not dispute that
                                                                              a Member State may provide for rules governing the
                                                                              authorisation for operating laboratories. Such rules must
                                                                              however take account of the requirements and safeguards
(1) Decision 1999/244/EC amending Decision 97/296/EC drawing
    up the list of third countries from which the import of fishery           already complied with in another Member State of
    products is authorised for human consumption (OJ 1999 L 91,               establishment without disregarding that a higher level of
    p. 37).                                                                   protection may exist in the first Member State. Otherwise,
                                                                              failure to take into account safeguards already complied
                                                                              with in another Member State would lead to a duplicate
                                                                              procedure for applying for authorisation over and above
                                                                              the authorisation which the foreign laboratory has already
                                                                              obtained in its Member State of establishment. Such a
                                                                              situation runs counter to the principle of proportionality
                                                                              which requires that the objectives pursued must be
                                                                              achieved by the least restrictive means.
Action brought on 21 December 2001 by the Commission
of the European Communities against the French Republic                 —     Restriction of Article 43 EC by virtue of the fact that the
                                                                              French legislation (Article R 332-3 of the Social Security
                                                                              Code) restricts financial assistance from sickness
                          (Case C-496/01)                                     insurance schemes only to exceptional cases, that is to
                                                                              say where the insured person is able to show that he
                           (2002/C 44/16)                                     cannot obtain the appropriate treatment on French
                                                                              territory, which is moreover not the case so far as
                                                                              concerns bio-medical analysis laboratories. That consti-
                                                                              tutes a barrier both to the freedom to provide services
                                                                              (where a laboratory does not have an establishment in
An action against the French Republic was brought before the
                                                                              France) and to the right to set up secondary establish-
Court of Justice of the European Communities on 21 December
                                                                              ments (where a laboratory has a secondary establishment
2001 by the Commission of the European Communities,
                                                                              where analyses are not however carried out).
represented by Maria Patakia, acting as Agent.
                                                                        The Commission takes the view that such restrictions are not
The applicant claims that the Court should:
                                                                        justified on public-health grounds in particular. The safeguards
                                                                        afforded by the Council directives in the field (93/16/EEC,
1.    Declare that by:                                                  85/432/EEC, 85/433/EEC, 78/1026/EEC and 78/1027/EEC)