CELEX: C2004/047/35
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-540/03: Action brought on 22 December 2003 by the European Parliament against the Council of the European Union

21.2.2004                EN                          Official Journal of the European Union                                         C 47/21
(d) discriminatory, and/or                                                         person on the purchase of goods and services intended
                                                                                   for both activities, is it necessary to include in the
                                                                                   denominator of the fraction for calculation not only the
(e)    contrary to the fundamental freedom to pursue a trade or                    annual turnover but also the value of work in progress at
       business?                                                                   the end of each year which has not yet been put on the
                                                                                   market and for which no value, total or partial, has been
                                                                                   received?
(1) fixing for 2003 the fishing opportunities and associated conditions
    for certain fish stocks and groups of fish stocks, applicable in
    Community waters and, for Community vessels, in waters where             —     Or to the effect that only turnover is covered?
    catch limitations are required (OJ L 356, 31.12.2002, p. 12).
(2) amending Regulation (EC) No 2341/2002 fixing for 2003 the
    fishing opportunities and associated conditions for certain fish
    stocks and groups of fish stocks, applicable in Community waters
    and, for Community vessels, in waters where catch limitations are        (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
    required (OJ L 97, 15.04.2003, p. 11).                                       harmonization of the laws of the Member States relating to
(3) on the allocation of additional days absent from port to Member              turnover taxes — Common system of value added tax: uniform
    States in accordance with Annex XVII of Council Regulation                   basis of assessment (OJ L 145, 13.06.1977, p. 1).
    (EC) No 2341/2002 (Text with EEA relevance) (notified under              (2) CIVA (Value Added Tax Code).
    document number C(2003) 762) (OJ L 71, 15.03.2003, p. 28).
Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, Portugal, by order of that Court                    Action brought on 22 December 2003 by the European
of 26 November 2003 in the case of António Jorge Lda                            Parliament against the Council of the European Union
                      against Fazenda Pública
                           (Case C-536/03)                                                             (Case C-540/03)
                            (2004/C 47/34)
                                                                                                        (2004/C 47/35)
Reference has been made to the Court of Justice of the
European Communities by order of the Supremo Tribunal
Administrativo, Portugal, of 26 November 2003, received at                   An action against the Council of the European Union was
the Court Registry on 22 December 2003, for a preliminary                    brought before the Court of Justice of the European Communi-
ruling in the case of António Jorge Lda against Fazenda Pública              ties on 22 December 2003 by the European Parliament,
on the following questions:                                                  represented by H. Duintjer Tebbens and A. Caiola, acting as
                                                                             Agents, with an address for service in Luxembourg.
—      In what sense must Article 19 of the Sixth Council
       Directive of 17 May 1977 (77/388/EEC) be inter-
       preted? (1)
                                                                             The European Parliament claims that the Court should:
—      Is Article 23 (4) of the CIVA (2) compatible with the
       abovementioned provision, when interpreted to the effect              —     Annul, pursuant to Article 230 EC, the last subparagraph
       that, where the taxable person is an undertaking engaged                    of Article 4(1), Article 4(6) and Article 8 of Council
       in the real-estate business, carrying out works in two                      Directive 2003/86/EC of 22 September 2003 on the right
       sectors of activity, one being the construction of buildings                to family reunification (1);
       for sale (exempt from VAT) and the other contract work
       (subject to VAT), in order to calculate the pro rata or
       percentage deduction of VAT borne by that taxable                     —     Order the defendant to pay the costs.
 ---pagebreak--- C 47/22                EN                        Official Journal of the European Union                                           21.2.2004
Pleas in law and main arguments                                          1.     Should Article 49 of the EC Treaty be interpreted as
                                                                                precluding the introduction, by a national or local
                                                                                authority, of a tax on mobile and personal communi-
                                                                                cations infrastructures used to carry on activities covered
This action for annulment is aimed at defending fundamental                     by licences and authorisations?
rights, especially the rights of minors, in the Community legal
order. The Directive, whilst providing for valid rules for
codifying the law governing family reunification for third-              2.     Given that Article 3c of Commission Directive 90/388/
country nationals, nevertheless contains a number of pro-                       EEC of 28 June 1990 (1), as inserted by Commission
visions which are unacceptable having regard to fundamental                     Directive 96/2/EC of 16 January 1996 (2) amending
rights, including the right to family life and the right not to be              Directive 90/388/EEC with regard to mobile and personal
discriminated against, compliance with which must be ensured                    communications, refers to the lifting of ‘all restrictions’,
in the legal order of the European Union pursuant to Article 6                  does that article preclude the introduction, by a national
of the Treaty on European Union.                                                or local authority, of a tax on mobile and personal
                                                                                communications infrastructures used to carry on activities
                                                                                covered by licences and authorisations?
The right to family life as recognised by Article 8 of the
1950 European Convention on Human Rights (ECHR) and
interpreted in the case-law of the European Court of Human               (1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
Rights can be restricted only for certain reasons and each case              tition in the markets for telecommunications services (OJ L 192,
calls for a balancing of the interests of the third-country                  24.7.1990, p. 10).
nationals concerned and those of the host State. Derogations             (2) Commission Directive 96/2/EEC of 16 January 1996 amending
from the right to family reunification which are expressly                   Directive 90/388/EEC with regard to mobile and personal com-
authorised by the aforementioned provisions of the directive                 munications (OJ L 20, 26.1.1996, p. 59).
go beyond the permitted restrictions and violate the fundamen-
tal right to family life and the right not to be discriminated
against as guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States of the
EU as general principles of Community law, as established by
Article 6(2) of the Treaty on European Union.
(1) OJ 2003 L 251, p. 12.
                                                                         Reference for a preliminary ruling by the Conseil d’État
                                                                         (Belgium) by order of that Court of 8 December 2003 in
                                                                         the case of S.A. Belgacom Mobile against Commune de
                                                                                                      Schaerbeek
                                                                                                   (Case C-545/03)
Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in                                              (2004/C 47/37)
   the case of S.A Mobistar against Commune de Fléron
                         (Case C-544/03)
                                                                         Reference has been made to the Court of Justice of the
                          (2004/C 47/36)                                 European Communities by order of the Conseil d’État (Belgium)
                                                                         of 8 December 2003, received at the Court Registry on
                                                                         23 December 2003, for a preliminary ruling in the case of S.A.
                                                                         Belgacom Mobile against Commune de Schaerbeek on the
                                                                         following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)            1.     Should Article 49 of the EC Treaty be interpreted as
of 8 December 2003, received at the Court Registry on                           precluding the introduction, by a national or local
23 December 2003, for a preliminary ruling in the case of S.A                   authority, of a tax on mobile and personal communi-
Mobistar against Commune de Fléron on the following                             cations infrastructures used to carry on activities covered
questions:                                                                      by licences and authorisations?