CELEX: C1998/041/25
Language: en
Date: 1998-02-07 00:00:00
Title: Action brought on 5 December 1997 by the Commission of the European Communities against the Kingdom of Spain (Case C-414/97)

C 41/12                EN                   Official Journal of the European Communities                                       7.2.98
The applicant claims that the Court should:                            Action brought on 4 December 1997 by the Commission
                                                                             of the European Communities against the Federal
                                                                                             Republic of Germany
1. declare that, by failing to adopt the laws, regulations                                     (Case C-413/97)
     or administrative provisions necessary to comply with
     Council Directive 92/85/EEC of 19 October 1992                                              (98/C 41/24)
     on the introduction of measures to encourage
     improvements in the safety and health at work of
     pregnant workers and workers who have recently                    An action against the Federal Republic of Germany was
     given birth or are breastfeeding (1), the Grand Duchy             brought before the Court of Justice of the European
     of Luxembourg has failed to fulfil its obligations                Communities on 4 December 1997 by the Commission of
     under that Directive;                                             the European Communities, represented by Michel Nolin,
                                                                       of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
                                                                       Cruz, of its Legal Service, Wagner Centre, Kirchberg.
2. order the Grand Duchy of Luxembourg to pay the
     costs.
                                                                       The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                    1. declare that, by failing to adopt the laws, regulations
                                                                            or administrative provisions necessary to comply with
                                                                            Council Directive 93/7/EEC of 15 March 1993 on the
The pleas in law and main arguments are analogous with                      return of cultural objects unlawfully removed from the
those relied upon in Case C-406/97 (2), the time-limit for                  territory of a Member State (1), or by failing to inform
transposition expired on 19 October 1994.                                   the Commission thereof, the Federal Republic of
                                                                            Germany has failed to fulfil its obligations under
                                                                            Article 18 of that Directive;
(1) OJ L 348, 28.11.1992, p. 1.
(2) See page 11 of this Official Journal.
                                                                       2. order the Federal Republic of Germany to pay the
                                                                            costs.
                                                                       Pleas in law and main arguments adduced in support:
Reference for a preliminary ruling by the Pretura                      The mandatory nature of the provisions of the third
Circondariale di Bologna by order of that court of                     paragraph of Article 189 of the EC Treaty requires
29 November 1997 in the case of E.D. Srl against Italo                 Member States to adopt the measures necessary to
                            Fenocchio                                  transpose directives addressed to them into their domestic
                                                                       law before the expiry of the period prescribed for doing
                        (Case C-412/97)                                so. In the present case, that period expired on
                                                                       15 December 1993 without the Grand Duchy of
                          (98/C 41/23)
                                                                       Luxembourg having brought into force the necessary
                                                                       provisions (2).
Reference has been made to the Court of Justice of the                 (1) OJ L 74, 27.3.1993, p. 74.
European Communities by order of the Pretura                           (2) See page 11 of this Official Journal.
Circondariale       (Magistrates       Court),   Bologna,     of
29 November 1997, received at the Court Registry on
5 December 1997, for a preliminary ruling in the case of
E.D. Srl against Italo Fenocchio on the following question:
                                                                       Action brought on 5 December 1997 by the Commission
Must the prohibition of issuing an ingiunzione (summary                of the European Communities against the Kingdom of
order) where the same is to be served outside the Republic                                            Spain
or territories subject to Italian sovereignty Ð that
prohibition being laid down by the last paragraph of                                           (Case C-414/97)
Article 633 of the Code of Civil Procedure Ð be regarded                                         (98/C 41/25)
as a restriction or equivalent measure capable of
hindering, directly or indirectly, actually or potentially, the
free movement of goods, services and capital guaranteed                An action against the Kingdom of Spain was brought
by Articles 34, 59 and 73b of the Treaty of Rome?                      before the Court of Justice of the European Communities
                                                                       on 15 December 1997 by the Commission of the
                                                                       European Communities, represented by Miguel Díaz-
                                                                       Llanos La Roche, Legal Adviser, and Carlos Gómez de la
 ---pagebreak--- 7.2.98               EN                 Official Journal of the European Communities                                       C 41/13
Cruz, of its Legal Service, acting as Agents, with an              1993. As from that date the Kingdom of Spain has been
address for service in Luxembourg at the office of Carlos          authorized to grant that exemption, even though only in
Gómez de la Cruz, Wagner Centre, Kirchberg.                        respect of the transactions referred to in points 23 and 25
                                                                   of Annex F of Directive 77/388/EEC.
The applicant claims that the Court should:                        (1) OJ L 145, 13.6.1977, p. 1.
1. declare that, by considering intra-Community
    acquisitions and imports of arms, ammunition and
    equipment for exclusively military use, other than the
    aircraft and warships mentioned in points 23 and 25
    of Annex F to Directive 77/388/EEC of 17 May 1977,
                                                                   Action brought on 9 December 1997 by the Commission
    to be exempt from value added tax (VAT) (1),
                                                                    of the European Communities against the Italian Republic
    notwithstanding the provisions of Articles 2(2), 28a,
    14 and 28c(B) of Directive 77/388/EEC, the Kingdom                                       (Case C-415/97)
    of Spain has failed to fulfil its obligations under the
    Treaty establishing the European Community;                                                (98/C 41/26)
2. order the Kingdom of Spain to pay the costs.                    An action against the Italian Republic was brought before
                                                                   the Court of Justice of the European Communities on
                                                                   9 December 1997 by the Commission of the European
Pleas in law and main arguments adduced in support:                Communities, represented by Paolo Stancanelli, of its
                                                                   Legal Service, acting as Agent, with an address for service
                                                                   in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                   of its Legal Service, Wagner Centre, Kirchberg.
Article 2(2) and Article 28a of Directive 77/388/EEC
provide, in a general manner, that all imports and intra-
Community acquisitions of goods are to be subject to
VAT. Articles 14 and 28c establish a common list of the            The applicant claims that the Court should:
exemptions which the Member State must Ð or may Ð
grant, with a view to collecting the Communities' own
resources in a uniform manner in all the Member States.            Ð declare that, by failing to adopt the laws, regulations
Among those exemptions, exhaustively listed in Articles 14              or administrative provisions necessary to comply with
and 28c, there is none which refers to arms, ammunition                 Council Directive 93/7/EEC of 15 March 1993 on the
and equipment for exclusively military use, similar to the              return of cultural objects unlawfully removed from the
exemption granted by Spanish Law No 6/87.                               territory of a Member State (1), or by failing to inform
Article 28(3)(b), invoked by the Kingdom of Spain, refers               the Commission thereof, the Italian Republic has
to the Member States which on the date on which the                     failed to fulfil its obligations under that Directive;
Directive entered into force treated as exempt from VAT
certain transactions, and authorizes them to continue
doing so as a transitional measure. Since no period of time
was granted to the Kingdom of Spain by Annex XXXVI                 Ð order the Italian Republic to pay the costs.
or other provisions of the Act concerning the Conditions
of Accession of the Kingdom of Spain to the European
Community, it introduced VAT by Law No 30/85 which
began to have full effect from 1 January 1986. It was not          Pleas in law and main arguments adduced in support:
until more than a year later that it was decided to exempt
imports and intra-Community acquisitions of military
equipment, with retrospective effect as from the date on           Under Article 189 of the EC Treaty, according to which a
which VAT began to be charged in Spain.                            directive is to be binding, as to the result to be achieved,
                                                                   upon each Member State to which it is addressed,
                                                                   Member States are required to observe the time-limits laid
It is true that the transitional period referred to in             down. That period expired on 15 December 1993 without
Article 28 of Directive 77/388/EEC was initially fixed to          the Italian Republic having brought into force the
last for five years as from 1 January 1978. It is also true        necessary provisions.
that, as the Member States in Council reached no
decision, that transitional period has been extended to
                                                                   (1) OJ L 74, 27.3.1993, p. 74.
date and that, in consequence, Member States which then
treated the transactions listed in Annex F as exempt may
continue to do so. However, that was, beyond a doubt,
not the case of the Kingdom of Spain until 1 January