CELEX: C1996/046/16
Language: en
Date: 1996-02-17 00:00:00
Title: Reference for a preliminary ruling from the Rechtbank van Eerste Aanleg te Brussel, by judgment of that court of 12 December 1995, in the case of B. R. D. (Bureau RIK DECAN-Business Research & Development) NV v. Belgian State (Case C-401/95)

17 . 2 . 96            EN                   Official Journal of the European Communities                                    No C 46/9
The decision to reject Geotronics' tender on grounds of                answer is in the affirmative, is that rule justified on grounds
origin was undoubtedly taken after the entry into force of             of the general interest in maintaining industrial peace in the
the EEA Agreement. The EEA Agreement applies to all legal              sensitive area of the supply of tourist services, in respect of
situations which arise after its entry into force . Geotronics         which the Greek State, as a country for which tourism is
therefore contends that there is no retroactivity in the               important, has a reasonable and justifiable interest in
present case .                                                         intervening by regulation ?
The scope of the EEA Agreement
The Court of First Instance ruled that the EEA Agreement
cannot apply to the contract at issue since one of the parties
of the Contract, Romania , is not a party to the EEA                   Reference for a preliminary ruling by the Sø- og Handelsret
Agreement. This is a formalistic conclusion which overlooks            by order of that court of 19 December 1995 in the case of
the economic reality of the situation. That reality is that            Handels- og Kontorfunktionærernes Forbund i Danmark,
there is in fact, as a result of the Commission's decision ,           acting on behalf of Helle Elisabeth Larsson, v. Dansk
discrimination between two EEA producers of equivalent                 Handel & Service, acting on behalf of Føtex Supermarked
products . The economic reality of the transaction and the                                                A/S
actions taken in relation thereto should be decisive .                                           ( Case C-400/95 )
                                                                                                    ( 96/C 46/15 )
It is submitted that the present situation falls within the
scope of the EEA Agreement. Geotronics further maintains
that the Commission has discriminated in a manner likely to            Reference has been made to the Court of Justice of the
distort competition between products originating in the EC             European Communities by order of the Sø- og Handelsret
and EFTA states by giving an unfair competitive advantage              ( Maritime and Commercial Court) of 19 December 1995 ,
to the former . Such discrimination hinders the free                   which was received at the Court Registry on 21 December
movement of goods contrary to Articles 8 , 11 and 65 ( 1 ) of          1995 , for a preliminary ruling in the case of Handels- og
the EEA Agreement.                                                     Kontorfunktionærernes Forbund i Danmark (Union of
                                                                       Commercial and Clerical Employees in Denmark ), acting on
                                                                       behalf of Helle Elisabeth Larsson, v. Dansk Handel &
 (•) OJ No C 333 , 9 . 12 . 1995 , p . 33 .                            Service ( Danish Commercial and Service-Industries
                                                                       Association ), acting on behalf of Føtex Supermarked A/S, on
                                                                       the following question:
                                                                       Does Article 5 ( 1 ), in conjunction with Article 2 ( 1 ), of
                                                                       Council Directive 76/207/EEC of 9 February 1976 on the
                                                                       implementation of the principle of equal treatment for men
 Reference for a preliminary ruling by the Simvoulio tis               and women as regards access to employment, vocational
 Epikratias tis Ellados ( Council of State, Greece ), by a             training and promotion, and working conditions ( x ), cover
 decision of that court of 7 November 1995 in the case of              dismissal as a result of absence following the end of
 Sindesmos ton en Elladi Touristikon kai Taxidiotikon                  maternity leave if the absence is attributable to an illness
              Grafion v. Minister of Employment                        which arose during pregnancy and continued during and
                         ( Case C-398/95 )
                                                                        after maternity leave, it being assumed that the dismissal
                                                                        took place after the end of the maternity leave ?
                            ( 96/C 46/14 )
                                                                        (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
 Reference has been made to the Court of Justice of the
 European Communities by a decision of the Simvoulio tis
 Epikratias tis Ellados of 7 November 1995 , which was
 received at the Court Registry on 18 December 1995 , for a
 preliminary ruling in the case of Sindesmos ton en Elladi
 Touristikon kai Taxidiotikon Grafion (Association of                   Reference for a preliminary ruling from the Rechtbank van
 Tourist and Travel Agencies in Greece ) v. Minister of                 Eerste Aanleg te Brussel, by judgment of that court of
 Employment, supported by the Somatio Diplomatoukhon                    12 December 1995 , in the case of B. R. D. (Bureau RIK
 Xenagon ( Association of Certified Tourist Guides ) and the            DECAN-Business Research & Development ) NV v. Belgian
 Panellinia Omospondia Xenagon ( Panhellenic Federation of                                                State
 Tourist Guides ) on the following question:
                                                                                                   Case C-401 /95 )
 Is the rule in Article 37 of Law No 1545/1985 which, in the                                         ( 96/C 46/ 16 )
 circumstances referred to therein, prescribes a mandatory
  legal form of a relationship of non-independent                       Reference has been made to the Court of Justice of the
  employment between the parties — the legal form under                 European Communities by judgment of the Rechtbank van
  which it is usual for the services of tourist guides to be            Eerste Aanleg te Brussel ( Court of First Instance, Brussels ),
  provided in the circumstances described in that Article —              by judgment of that court of 12 December 1995 , which was
  contrary to Articles 59 et seq. of the EC Treaty ? If the             received at the Court Registry on 21 December 1995 , for a
 ---pagebreak--- 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 .