CELEX: C1998/378/14
Language: en
Date: 1998-12-05 00:00:00
Title: Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that Court of 16 June 1998, in the case of Masterfoods Ltd against HB Ice Cream Ltd, and HB Ice Cream Ltd against Masterfoods Ltd trading as Mars Ireland (Case C-344/98)

5.12.98              EN                  Official Journal of the European Communities                                  C 378/7
Chamber of the Tribunal de Grande Instance de Lille                 4. a mean cost per horsepower of:
(Regional Court, Lille) of 7 August 1998, which was
received at the Court Registry on 31 August 1998, for a
                                                                        295,00 French francs for the 19 and 20 fiscal CV
preliminary ruling in the case of Philippe Anssens v.
                                                                        band,
Directeur des Services Fiscaux du Nord on the following
                                                                        401,80 French francs for the 21 and 22 CV band,
question:
                                                                        541,10 French francs for the 23 CV and over band,
Considering that, as Community law stands at present, the
Member States remain free to subject products such as                   whereas the highest cost per fiscal horsepower is
cars to a system of road tax the amount of which                        202,20 French francs for the 15Ð16 CV band;
increases progressively according to an objective criterion
such as cylinder capacity, provided that that system of             5. successive differentials expressed as percentages of the
taxation is free from any discriminatory or protective                  tax compared to the basic tax (260 French francs):
effect, may the tax system established by the French
legislature be regarded as corresponding to the above
criteria of objectivity and non-discrimination, that tax                735 % for the 19 and 20 CV band compared to the 17
system including:                                                       and 18 CV band,
                                                                        1 111 % for the 21 and 22 CV band compared to the
                                                                        19 and 20 CV band,
1. successive differentials between one band and the next,              1 666 % for the 23 CV and over band compared to
    taking as the basis the first band covering 2-3-4 CV                the 21 and 22 CV band,
    fiscal power value, 95-96 tax disc for the deÂpartement
    of Charente, whose amount is 206 French francs,
    namely:                                                             whereas the maximum percentage increase amounts to
                                                                        430 % and relates to the 12 to 14 CV band compared
                                                                        to the 10 and 11 CV band;
    for the 19 and 20 CV band 1 910 French francs,
    for the 21 and 22 CV band 2 888 French francs,
    for the 23 CV and over band 4 332 French francs,                6. a multiplying coefficient for each band in relation to
                                                                        the basic tax, which is 260 French francs, amounting
                                                                        to:
    whereas the maximum successive differential for the
    preceding bands covering lower fiscal power values is
    1 118 French francs;                                                22,12 for 19 and 20 CV,
                                                                        33,23 for 21 and 22 CV,
                                                                        49,89 for 23 CV and over,
2. differentials weighted by band and fiscal power value
    of:
                                                                        whereas the highest coefficient is only 14,78 and
    955 French francs for the 19 and 20 CV band,                        relates to the 17 and 18 CV band, that of the
    1 444 French francs for the 21 and 22 CV band,                      proceeding band (15Ð16 CV) being 12,05;
    4 332 French francs for the 23 CV and over band,
                                                                    it being observed that in any event French production does
    whereas the maximum weighted differential for the               not include vehicles with a fiscal horsepower greater than
    preceding bands is 373 French francs (12, 13 and 14             17 CV?
    CV fiscal values band);
3. a cost of the tax disc per fiscal horsepower of:
    302,70 French francs           corresponding     to   the
    administrative fiscal power  rating of 19 CV,                   Reference for a preliminary ruling by the Supreme Court,
    287,60 French francs           corresponding     to   the       Ireland, by order of that Court of 16 June 1998, in the
    administrative fiscal power  rating of 20 CV,                   case of Masterfoods Ltd against HB Ice Cream Ltd, and
    411,40 French francs           corresponding     to   the       HB Ice Cream Ltd against Masterfoods Ltd trading as
    administrative fiscal power  rating of 21 CV,                                           Mars Ireland
    392,70 French francs           corresponding     to   the                            (Case C-344/98)
    administrative fiscal power  rating of 22 CV,
                                                                                           (98/C 378/14)
    564,00 French francs           corresponding     to   the
    administrative fiscal power  rating of 23 CV,
    540,30 French francs           corresponding     to   the       Reference has been made to the Court of Justice of the
    administrative fiscal power  rating of 24 CV,                   European Communities by an order of the Supreme Court,
    518,90 French francs           corresponding     to   the       Ireland, of 16 June 1998, which was received at the Court
    administrative fiscal power  rating of 25 CV,                   Registry on 21 September 1998, for a preliminary ruling
                                                                    in the case of Masterfoods Ltd against HB Ice Cream Ltd,
    whereas the highest cost per fiscal horsepower is 226           and HB Ice Cream Ltd against Masterfoods Ltd trading as
    French francs for a vehicle of 17 CV power rating;              Mars Ireland, on the following questions:
 ---pagebreak--- C 378/8               EN                 Official Journal of the European Communities                                     5.12.98
1. In the light of the Judgment and Orders of the High              Appeal brought on 7 October 1998 by Ca' Pasta Srl
     Court of Ireland dated 28th May 1992 the decision of           against the order made on 16 July 1998 by the Third
     the Commission of the European Communities dated               Chamber of the Court of First Instance of the European
     11th March 1998 (1) and the applications by Van Den            Communities in Case T-274/97 between Ca' Pasta Srl and
     Bergh Foods Limited pursuant to Articles 173, 185                       Commission of the European Communities
     and 186 of the Treaty establishing the European
                                                                                          (Case C-359/98 P)
     Economic Community (EC Treaty') to annul and
     suspend the latter decision:                                                           (98/C 378/15)
     (a) Does the obligation of sincere cooperation with
         the Commission as expounded by the Court of                An appeal against the order made on 16 July 1998 by the
         Justice require the Supreme Court to stay the              Third Chamber of the Court of First Instance of the
         instant proceedings pending the disposal of the            European Communities in Case T-274/97 between Ca'
         appeal to the Court of First Instance against the          Pasta Srl and Commission of the European Communities
         aforesaid decision of the Commission and any               was brought before the Court of Justice of the European
         subsequent appeal to the Court of Justice?                 Communities on 7 October 1998 by Ca' Pasta Srl, whose
                                                                    registered office is in Padua (Italy), represented by Paolo
                                                                    Piva, of the Venice Bar, and Guy Arendt, of the
     (b) Does a decision of the Commission which is                 Luxembourg Bar, with an address for service in
         addressed to an individual party (and which is the         Luxembourg at the latter's Chambers, 7 Val Ste Croix.
         subject of an application for annulment and
         suspension by that party) declaring such party's
         freezer cabinet agreement to be contrary to                The appellant claims that the Court of Justice should: set
         Article 85(1) and/or Article 86 of the EC Treaty           aside as unlawful the order of the Court of First Instance,
         thereby prevent such party from seeking to uphold          Third Chamber, of 16 July 1998 and in consequence annul
         a contrary Judgment of the national Court in that          the measure complained of in the application at first
         party's favour on the same or similar issues under         instance.
         Articles 85 and 86 of the Treaty where that
         decision of the national court is appealed to the
         national Court of final appeal?
                                                                    Pleas in law and main arguments adduced in support:
Questions 2 and 3 only arise in the event of a negative
                                                                    1. Breach of general principles relating to proceedings
answer to question 1(a)
                                                                        brought against decisions under Article 173 of the EC
                                                                        Treaty. Failure to observe the rule of law. Infringement
                                                                        of Council Regulation (EEC) No 4028/86 (1) and
2. Having regard to the legal and economic context of                   Commission Regulation (EEC) No 1116/88 (2) of
     the cabinet agreements at issue in the market for                  20 April 1988 (laying down detailed rules for the
     single-wrapped items of impulse ice cream does the                 application of decisions granting aid for projects
     practice whereby a manufacturer and/or supplier of ice             concerning Community measures to improve and
     cream provides a freezer to a retailer at no direct                adapt structures in the fisheries and aquaculture sector
     charge Ð or otherwise induces the retailer to accept               and in structural works in coastal waters) and of
     the freezer Ð subject to the condition that the retailer           Council Regulation (EEC) No 4253/88 (3) of
     stock no ice cream in such freezer other than that                 19 December 1988 laying down provisions for
     supplied by the said manufacturer and/or supplier                  implementing Regulation (EEC) No 2052/88 as
     constitute an infringement of the provisions of                    regards coordination of the activities of the Different
     Article 85(1) and/or Article 86 of the EC Treaty?                  Structural Funds between themselves and with the
                                                                        operations of the European Investment Bank and the
                                                                        other existing financial instruments.
3. Are freezer exclusivity agreements protected from
     challenge under Articles 85 and 86 of the EC Treaty
     by reason of the provisions of Article 222 of the EC           2. Breach of the obligation to state reasons which is laid
     Treaty?                                                            down in Article 33 of the EC Statute of the Court of
                                                                        Justice and is also referred to in Article 46 of that
                                                                        Statute. The order is illogical and contradictory.
(1) Commission Decision of 11 March 1998, relating to a                 Breach of the rights of the defence.
    proceeding under Articles 85 and 86 of the EC Treaty (Case
    Nos IV/34.073, IV/34.395 and IV/35.436 Van den Bergh
    Foods Limited) (notified under document number C(1998)          (1) OJ L 376, 31.12.1986, p. 7.
    292) (Only the English text is authentic) (98/531/EC) (OJ       (2) OJ L 112, 30.4.1988, p. 1.
    L 246, 4.9.1998, p. 1).                                         (3) OJ L 374, 31.12.1988, p. 1.