CELEX: C1996/354/32
Language: en
Date: 1996-11-23 00:00:00
Title: Action brought on 24 September 1996 by the Commission of the European Communities against the French Republic (Case C-312/96)

No C 354/ 16           EN                  Official Journal of the European Communities                                  23 . 11 . 96
— order the Kingdom of the Netherlands to pay the                     The Commission of the European Communities claims that
    costs .                                                           the Court should :
                                                                      — declare that, by failing to adopt the laws, regulations and
Pleas in law and main arguments adduced in support:                       administrative measures necessary in order to comply
                                                                          with Council Directive 93/38/EEC of 14 June 1993
— Under Article 1 of Council Directive 89/465/EEC, the                    coordinating the procurement procedures of entities
    Member States are no longer permitted as from                         operating in the water, energy, transport and
     1 January 1990 to exempt supplies of recuperable                     telecommunications sectors ('), the French Republic has
    material and fresh industrial waste pursuant to                       failed to fulfil its obligations under that Directive, in
    Article 28 ( 3 ) and point 20 of Annex F of the original              particular Article 45 thereof,
    version of the sixth Directive ( 77/388/EEC ). As a result
    of Article 2 of Directive 77/388/EEC, such supplies are           — declare, in the alternative, that, by failing forthwith to
    now subject to value added tax .                                      inform the Commission of such measures , the French
                                                                          Republic has in any event failed to fulfil its obligations
— Merely making a request pursuant to Article 27 of                       under the said Directive ;
    Directive     77/388/EEC      cannot     detract  from    the
    Commission's power to bring proceedings under                     — order the French Republic to pay the costs .
    Article 169 of the EC Treaty for failure to fulfil
    obligations .                                                     Pleas in law and main arguments adduced in support:
    Moreover, the Commission denies that the procedure in             The mandatory nature of the provisions of the third
    question (') has not been concluded . The short                   paragraph of Article 189 of the EC Treaty is such as to
    time-limits prescribed by Article 27 ( 3 ) and ( 4 ) are          oblige Member States to whom directives are addressed to
    justified by requirements relating to legal certainty.            adopt the measures necessary for the implementation of
    Undertakings and Member States should be made                     such directives within the time-limit prescribed therein . The
    certain as quickly as possible about any national                 time-limit laid down in Article 45 of Directive 93/38/EEC
    measure constituting a derogation from the common                 expired on 1 July 1994 but the French Republic has not
    system of value added tax . The Netherlands                       adopted the necessary measures .
    Government itself has not taken any steps to eliminate
    the present unlawful state of affairs . In particular, it has     (') OJ No L 199 , 9 . 8 . 1993 , p . 84 .
    failed to place the matter on the Council 's agenda . Since
    the Council has not adopted a positive decision after the
    expiry of a reasonable time, the procedure initiated by
    the Netherlands Government under Article 27 must be
    regarded as closed . That Government's position that the
    procedure initiated in 1990 is still pending in mid-1995
                                                                      Action brought on 24 September 1996 by the Commission
    is also unconvincing given that the solution 'put
                                                                      of the European Communities against the French
    forward ' in 1990 was to be valid for only three years
                                                                                                     Republic
    according to the wording of the request.
                                                                                               ( Case C-312/96 )
(') Letter of 24 August 1990 from the Commission to the other                                    ( 96/C 354/32 )
    Member States and the communication to the Council of
    22 October 1990 [ SEC(90 ) 2031 final ].                          An action against the French Republic was brought before
                                                                      the Court of Justice of the European Communities on
                                                                      24 September 1996 by the Commission of the European
                                                                      Communities, represented by Hendrik van Lier, Legal
                                                                      Adviser, acting as Agent, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
Action brought on 24 September 1996 by the Commission
of the European Communities against the French                        The Commission of the European Communities claims that
                             Republic                                 the Court should :
                        ( Case C-311 /96 )
                          ( 96/C 354/31 )                             — declare that, by failing to adopt the laws, regulations and
                                                                          administrative measures necessary in order to comply
                                                                          with Council Directive 93/36/EEC of 14 June 1993
An action against the French Republic was brought before                  coordinating procedures for the award of public supply
the Court of Justice of the European Communities on                       contracts ( ^ the French Republic has failed to fulfil its
24 September 1996 by the Commission of the European                       obligations under that Directive, in particular Article 34
Communities, represented by Hendrik van Lier, Legal                       thereof;
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz,                  — declare, in the alternative, that, by failing forthwith to
Wagner Centre, Kirchberg.                                                 inform the Commission of such measures, the French
 ---pagebreak--- 23 . 11 . 96              EN                   Official Journal of the European Communities                                 No C 354/ 17
        Republic has in any event failed to fulfil its obligations        Reference for a preliminary ruling by the 0stre Landsret by
        under the said Directive;                                         a decision of that court of 4 September 1996 in the case of
                                                                             Brinkmann Tabakfabriken GmbH v. Skatteministeriet
— order the French Republic to pay the costs .                                                     ( Case C-3 19/96 )
                                                                                                     ( 96/C 354/34 )
Pleas in law and main arguments adduced in support:
The pleas in law and main arguments are the same as in Case               Reference has been made to the Court of Justice of the
C-3 1 1 /96 ( 2 ); the time-limit laid down in Article 34 of              European Communities by a decision of the 0stre Landsret
Directive 93/36/EEC expired on 14 June 1994 .                             [Eastern Regional Court] of 4 September 1996 , which was
                                                                          received at the Court Registry on 1 October 1996 , for a
(') OJ No L 199 , 9 . 8 . 1993 , p . 1 .                                  preliminary ruling in the case of Brinkmann Tabakfabriken
( 2 ) See Case C-3 11 /96 above .                                         GmbH against Skatteministeriet ( Ministry of Fiscal Affairs )
                                                                          on the following questions :
                                                                          1.   Should the definitions in the Council 's second Directive
                                                                               79/32/EEC of 18 December 1978 on taxes other than
                                                                               turnover taxes which affect the consumption of
Action brought on 25 September 1996 by the Commission                          manufactured tobacco ('), in the version in force on
of the European Communities against the Kingdom of                             14 May 1990 , be interpreted to the effect that a product
                                  Belgium                                      with the following characteristics should be classified as
                            ( Case C-3 13/96 )                                 cigarettes or as smoking tobacco :
                              ( 96/C 354/33
                                                                               — there is a packet containing 25 g of fine-cut smoking
                                                                                    tobacco divided up into 30 rolls of tobacco,
An action against the Kingdom of Belgium was brought                                industrially manufactured , each roll being of the
before the Court of Justice of the European Communities on                          same size, consistency and uniformity;
25 September 1996 by the Commission of the European
Communities, represented by Henrik van Lier, Legal                             — each roll of tobacco is 68,6 mm long and consists of
Adviser, and Jean-Francis Pasquier, a national civil servant                        approximately 833 mg of fine-cut smoking tobacco
on secondment to the Legal Service pursuant to the scheme                           wrapped in cellulose , and pressed out into a thin
for the secondment of national experts, acting as Agents ,                          block;
with an address for service in Luxembourg at the office of
 Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                            — the wrapping is porous, and the roll of tobacco
                                                                                    cannot be smoked as it is but must be inserted into a
The Commission of the European Communities claims that                              cigarette-paper tube or wrapped in ordinary
 the Court should :                                                                 cigarette paper, which in both cases can be done
                                                                                    without the use of implements ?
— declare that, by failing to adopt the laws, regulations and
        administrative measures ( with the exception of those                  If the answer to Question 1 is that the product should be
        applicable to mobile gas cylinders containing butane,                  classified as smoking tobacco, the Court is asked to
        propane or liquid petroleum gas ) necessary in order to                 reply to the following questions :
        comply with Commission Directive 93/21 /EEC of
        27 April 1 993 ( 1 ) adapting to technical progress for the       2 . Under Community law is an undertaking entitled to
        18th time Council Directive 67/548/EEC (2 ) on the                     compensation for every loss suffered by it as a
        approximation of the laws , regulations and                             consequence of a Member State's infringement of
        administrative provisions relating to the classification,               Community law, consisting in the fact that an authority
        packaging and labelling of dangerous substances, and by                 responsible for the final administrative decision as to
        failing in any event to communicate such measures, the                  which tax group a tobacco product should fall under has
        Kingdom of Belgium has failed to fulfil its obligations                 reached a decision which conflicts with Article 3 ( 1 ) of
        under that directive;                                                   Directive 79/32/EEC and, if so , what are the conditions
                                                                                governing such liability ?
 — order the Kingdom of Belgium to pay the costs .
                                                                           3 . ( a ) Are the definitions of manufactured tobacco
  Pleas in law and main arguments adduced in support:                                 products in Directive 79/32/EEC properly
                                                                                      implemented in a Member State if the Minister for
  The pleas in law and main arguments are the same as in Case                         Fiscal Affairs is, by law, empowered to lay down
  C 311 /96 ( 3 ); the time-limit laid down in Article 2 of                           provisions concerning the definitions of tobacco
  Directive 93/21 /EEC expired on 1 July 1994 .                                       products in compliance with the provisions laid
                                                                                      down by the European Communities, where no
  (') OJ No L 110 , 4 . 5 . 1993 , p . 20 .                                           legal provisions have been adopted pursuant to the
  ( 2 ) OJ, English Special Edition 1967, p. 234 .                                    Law .
  ( 3 ) See Case C-311 /96 above .
                                                                                If Question 3 ( a ) is answered in the negative , the Court
                                                                                 of Justice is asked to reply to the following question :