CELEX: C1998/055/39
Language: en
Date: 1998-02-20 00:00:00
Title: Appeal brought on 22 December 1997 by IPK München GmbH against the judgment delivered on 15 October 1997 by the First Chamber of the Court of First Instance of the European Communities in Case T-331/94 between IPK München GmbH and the Commission of the European Communities (Case C-433/97 P)

C 55/20               EN                  Official Journal of the European Communities                                   20.2.98
Pleas in law and main arguments adduced in support:                  Directive (in conjunction with Annex F, No 26) and the
                                                                     different ways in which gold is treated for tax purposes in
                                                                     certain Member States lead to distortions of competition.
Article 189 of the EC Treaty, under which a Directive                Consequently, the Commission submitted, as long ago as
shall be binding, as to the result to be achieved, upon each         28 October 1992, a proposal for a Directive relating to
Member State, carries by implication an obligation on the            special arrangements applicable to gold, which provides
Member States to observe the period for compliance laid              for the general exemption from tax of transactions in
down in the Directive. That period expired on                        respect of what is known as investment gold and for the
31 December 1995 without Ireland having enacted the                  repeal of the abovementioned transitional rules; but no
provisions necessary to comply with the Directive referred           Directive in those terms has to date been adopted by the
to in the conclusions of the Commission.                             Council. However, the issue in the present case is not
                                                                     whether the tax exemption in question has or has not
(1) OJ L 319, 12.12.1994, p. 20.                                     proved to be necessary in order to protect the German
                                                                     gold market but rather the fact that that tax exemption
                                                                     does not constitute a means of preventing the effects of
                                                                     existing distortions of competition on the national market
                                                                     for which provision is made by the sixth Directive.
Action brought on 22 December 1997 by the Commission                 Lastly, the Federal Republic of Germany wrongly relies on
of the European Communities against the Federal                      the declaration of the Council and the Commission on
                    Republic of Germany                              Article 1(1)(e) of Council Directive 72/77/EEC on the
                       (Case C-432/97)                               approximation of VAT rates. That declaration must be
                                                                     read in conjunction with the provision to which it relates,
                          (98/C 55/38)                               namely Article 12(3)(e) of the sixth Directive. The third
                                                                     and fourth sentences of that provision require the Member
                                                                     States from 1 January 1993 to take all necessary measures
An action against the Federal Republic of Germany was                to combat fraud in the field of the taxation of transactions
brought before the Court of Justice of the European                  in a respect of gold (including, in particular, a system
Communities on 22 December 1997 by the Commission                    giving the buyer the right to deduct tax). That provision
of the European Communities, represented by Enrico                   affords no basis for the conferral on the Member States of
Traversa, of its Legal Service, and Andreas Buschmann, a             any more extensive powers. According to the case-law of
national expert on secondment to its Legal Service, with             the Court of Justice, however, a declaration cannot be
an address for service in Luxembourg at the office of                invoked for the purposes of interpreting a provision of
Carlos Gómez de la Cruz, of its Legal Service, Wagner                Community law where the content of the declaration does
Centre C 254, Kirchberg.                                             not find expression in the provision in question and thus
                                                                     has no legal significance.
The applicant claims that the Court should:
                                                                     (1) OJ L 145, 13.6.1977, p. 1.
Ð declare that, by exempting from value added tax
    transactions in gold bars, gold coins ranking as legal
    tender and unprocessed gold and the negotiation of
    such transactions, the Federal Republic of Germany
    has failed to fulfil its obligations pursuant to Articles 2
    and 28a(1)(a) of the sixth Council Directive 77/388/             Appeal brought on 22 December 1997 by IPK München
    EEC of 17 May 1977 on the harmonisation of the                   GmbH against the judgment delivered on 15 October
    laws of the Member States relating to turnover taxes             1997 by the First Chamber of the Court of First Instance
    Ð common systems of value added tax: uniform basis               of the European Communities in Case T-331/94 between
    of assessment (1), as most recently amended,                     IPK München GmbH and the Commission of the
                                                                                        European Communities
Ð order the Federal Republic of Germany to pay the                                         (Case C-433/97 P)
    costs.
                                                                                              (98/C 55/39)
Pleas in law and main arguments adduced in support:
                                                                     An appeal against the judgment delivered on 15 October
The sixth Directive affords no basis for the exemption               1997 by the First Chamber of the Court of First Instance
provision introduced by the Federal Republic of Germany,             of the European Communities in Case T-331/94 between
with effect from 1 January 1993, as paragraph 4(8)(K) of             IPK München GmbH and the Commission of the
the Umsatzsteuergesetz (Law on turnover taxes).                      European Communities was brought before the Court of
                                                                     Justice of the European Communities on 22 December
                                                                     1997 by IPK München GmbH, represented by Hans-
The Commission is conscious of the fact that the                     Joachim Prieû, Rechtsanwalt, 13 place des Barricades,
transitional rules contained in Article 28(3)(b) of the sixth        B-1000 Brussels.
 ---pagebreak--- 20.2.98               EN                Official Journal of the European Communities                                   C 55/21
The appellant claims that the Court should:                        Reference for a preliminary ruling by the French Cour de
                                                                   Cassation, by judgment of that court of 9 December 1997,
1. set aside the judgment delivered on 15 October 1997             in the case of GIE Groupe Concorde, Uni Europe, La
    by the Court of First Instance of the European                 PreÂservatrice FoncieÁre IARD, La Baloise, ReÂunion
    Communities in Case T-331/94 (1) and annul the                 EuropeÂenne, Allianz, British and Foreign Marine
    respondent's decision of 3 August 1994 refusing                Insurance Co. Ltd and Camat against the Master of the
    payment of the second instalment of the aid granted to         vessel Suhadiwarno Panjan', P. T. Perusahan Pelayaran
    the applicant by letter of 4 August 1992,                      Trikoria Lloyd', Pro Ligne Ltd, Sveriges Angarts Assurans
                                                                        Forening, Somaba and Agence maritime Borghans
2. alternatively:                                                                        (Case C-440/97)
    set aside the judgment of the Court of First Instance                                  (98/C 55/40)
    referred to in (1) above and refer the case back to the
    Court of First Instance,
                                                                   Reference has been made to the Court of Justice of the
3. order the respondent to pay the costs.
                                                                   European Communities by a judgment of the French Cour
                                                                   de Cassation of 9 December 1997, which was received at
Pleas in law and main arguments adduced in support:
                                                                   the Court Registry on 29 December 1997, for a
                                                                   preliminary ruling in the case of GIE Groupe Concorde
Ð Complaints regarding procedural matters
                                                                   and Others v. The Master of the vessel Suhadiwarno
    Ð failure to comply with the obligation imposed by             Panjan' and Others, on the following question:
        Article 190 of the EC Treaty to provide a
        statement of reasons,
                                                                   With a view to the application of Article 5(1) of the
    Ð breach of the duty to investigate the matter and             Brussels Convention of 27 September 1968 on jurisdiction
        infringement of the rules concerning the burden of         and the enforcement of judgments in civil and commercial
        proof and the degree of proof.                             matters, must the place where the obligation at issue was
                                                                   or must be fulfilled, within the meaning of that provision,
Ð Infringements of substantive Community law                       be determined in accordance with the law which governs
                                                                   the obligation at issue or should national courts determine
    Ð the contested judgment is based on a presumption             the place of performance of the obligation by seeking to
        of fact which, as is apparent from the documents           establish, having regard to the nature of the relationship
        in the case, is incorrect,                                 creating the obligation and the circumstances of the case,
                                                                   the place where performance actually took place or should
    Ð in upholding a deadline for submission of the final
                                                                   have taken place, without having to refer to the law
        report which did not reflect the delay caused by
                                                                   which, under the rules on conflict of laws, governs the
        the Commission to the commencement of the
                                                                   obligation at issue?
        project, the Court of First Instance failed to
        observe the principle patere legem quam ipse
        fecisti and disregarded the prohibition of acts
        constituting an abuse of law,
    Ð breach of the prohibition imposed by the principle
        venire contra factum proprium, alternatively of the
        principle of estoppel: the Court of First Instance         Reference      for   a    preliminary    ruling   by    the
        wrongly assessed as irrelevant in law statements           Arbeidsrechtbank Brugge, Afdeling Oostende, by
        made by the official then responsible for the              judgment of that court of 22 December 1997 in the case
        matter in the course of discussions with the                    of Jozef Van Coile and Rijksdienst voor Pensioenen
        applicant, despite the fact that those statements
                                                                                         (Case C-442/97)
        were reflected in the minutes prepared by the
        Commission,                                                                        (98/C 55/41)
    Ð breach of the principle of proportionality: the
        Court of First Instance failed to give sufficient
        weight to the disparity between the gravity of the         Reference has been made to the Court of Justice of the
        alleged infringement and the conditions laid down          European       Communities      by    judgment     of   the
        in the Decision granting the aid and between the           Arbeidsrechtbank Brugge (Labour Court, Bruges), Ostend
        circumstances of the case (illegal intervention by         Division, of 22 December 1997, which was received at the
        the Commission and unlawful shortening of the              Court Registry on 30 December 1997, for a preliminary
        period for completion of the project) and the              ruling in the case of Jozef Van Coile and Rijksdienst voor
        penalty imposed by the Commission, namely non-             Pensioenen (National Pensions Office) on the following
        payment of 40 % of the total amount of the aid.            question:
(1) OJ C 387, 20.12.1997, p. 14.
                                                                   Article 32b(5) of the Royal Decree of 21 December 1967
                                                                   laying down general rules concerning retirement and