CELEX: C1996/046/17
Language: en
Date: 1996-02-17 00:00:00
Title: Reference for a preliminary ruling from the Finanzgericht München by decision of that court of 14 December 1995 in the case of Bioforce GmbH v. Oberfinanzdirektion München (Case C-405/95)

No C 46/ 10            EN                   Official Journal of the European Communities                                     17 . 2 . 96
preliminary ruling in the case of B. R. D. ( Bureau RIK                Action brought on 27 December 1995 by Italian Republic
DECAN-Business Research & Development ) NV v. Belgian                      against Commission of the European Communities
State on the following questions :                                                            ( Case C-406/95 )
1 . Must Article 18 ( 4 ) of the Sixth VAT Directive                                             ( 96/C 46/ 18 )
    ( 77/388/EEC ) ( J ) be interpreted as permitting a Member
    State not to refund a VAT credit from a given tax period           An action against the Commission of the European
    and not to carry it forward to a following period, but to          Communities was brought before the Court of Justice of the
    retain it on the ground that, and for so long as , it has a        European Communities on 27 December 1 995 by the Italian
    claim against the taxpayer in question relating to a               Republic, represented by Professor Umberto Leanza, acting
    previous tax period, if that claim is disputed by the              as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato,
    taxpayer and thus does not yet constitute a definitive             with an address for service in Luxembourg at the Italian
    legal title, where the Member State has not received any           Embassy, 5 Rue Marie-Adelaide .
    authorization under Article 27 of the Sixth VAT
    Directive ?                                                        The applicant claims that the Court should:
2 . If Question 1 is answered in the affirmative, must                 — annul the Commission 's decision of 4 October 1995
    Article 18 (4 ) of the Sixth VAT Directive, in conjunction             concerning the conditions imposed on the second
    with the principle of proportionality, be interpreted as               operator of GSM radiotelephony services in Italy ('),
    permitting the Member State to provide that the
    necessity or urgency of the retention may not be                   — order the Commission to pay the costs .
    contested in any way, and that the retention may not be
    replaced in any way by a guarantee or annulled, so long            Pleas in law and main arguments
    as the disputed VAT claim has not been the
    subject-matter of a final judicial decision ?                      1 . In order to abolish the alleged disadvantage suffered by
                                                                           the second operator, Italy is obliged under the contested
(') OJ No L 145 , 13 . 6 . 1977, p. 1 .                                    decision to require that 'Telecom Italia Mobile make an
                                                                           identical payment' or to adopt, after receiving the
                                                                           agreement of the Commission, 'corrective measures
                                                                           equivalent in economic terms to the payment made by
                                                                           the second operator'.
Reference for a preliminary ruling from the Finanzgericht                  However, in the steps taken prior to the adoption of the
Munchen by decision of that court of 14 December 1995 in                   contested decision, the possibility of requiring that
the case of Bioforce GmbH v.                Oberfinanzdirektion            Telecom Italia Mobile make an identical payment —
                               Miinchen                                    considered by the Commission to be the most
                                                                           reasonable course of action — was never discussed . Such
                         ( Case C-405/95 )                                 a measure was never envisaged at that stage and the
                            ( 96/C 46/17)                                  Italian Government had no opportunity to express its
                                                                           views on the subject. That fact alone is sufficient to
Reference has been made to the Court of Justice of the                     support the view that Italy's right to a fair hearing was
European Communities by a decision of the Finanzgericht                    infringed, but also in the case of the equivalent
                                                                           corrective    measures     referred   to  in  the    second
Miinchen ( Financial Court, Munich ) of 14 December 1995 ,
which was received at the Court Registry on 27 December                    subparagraph of Article 1 of the contested decision, the
1 995 , for a preliminary ruling in the case of Bioforce GmbH              discussions were incomplete and did not ensure the right
v. Oberfinanzdirektion Miinchen on the following                           to a fair hearing.
questions :
                                                                       2 . The contested decision is predicated on the assumption
1 . Is   the    Common         Customs    Tariff  —    Combined            that the Italian Government 'has imposed an initial
    Nomenclature 1 994 — to be interpreted as meaning that                 payment for the grant of a second concession' in relation
                                                                           to GSM radiotelephony .
    products such as Echinacea Drops ( extract of echinacea
    purpurea e herba and e radice in 56,1 % alcohol by                     That assumption is incorrect. The Italian Government
    weight, for protection against colds and influenza and                 has not exacted any initial payment from tenderers
    for strengthening resistance to colds ) are to be classified           competing for the grant of a second GSM concession.
    under heading 3004 — Medicaments consisting of                         Accordingly, a national measure for the purposes of
    unmixed products for therapeutic or prophylactic uses,                 Article 90 ( 1 ) does not exist in the situation in
    put up . . . for retail sale ?                                         question.
2 . If not, is the Common Customs Tariff to be interpreted             3 . The contested decision is unlawful and should therefore
    as meaning that products such as those referred to in                   be annulled, since it is based on the speculation that the
     Question 1 are to be classified as 'other' spirituous                  first operator will abuse its dominant position, conduct
     beverages under subheading 2208 90 69 ?                               which is merely potential, not actual : it has not been
                                                                            shown that such abuse has taken place, nor is it possible
                                                                            that such abuse ever could take place .