CELEX: C2003/226/03
Language: en
Date: 2003-09-20 00:00:00
Title: Order of the Court (First Chamber) of 24 July 2003 in Case C-166/02 (Reference for a preliminary ruling from the Tribunal Judicial da Comarca de Alcácer do Sal): Daniel Fernando Messejana Viegas v Companhia de Seguros Zurich SA, Mitsubishi Motors de Portugal SA (Article 104(3) of the Rules of Procedure — Answer which may be clearly deduced from existing case-law — Second Directive 84/5/EEC — Compulsory insurance against civil liability in respect of motor vehicles — Types of civil liability — Minimum amounts of cover)

C 226/2                 EN                          Official Journal of the European Union                                                20.9.2003
      —    third, the compensation does not exceed what is necessary to      Marion Roussel Ltd, established in Denham (United Kingdom),
           cover all or part of the costs incurred in discharging the        Hoechst Marion Roussel SA, established in Brussels (Belgium),
           public service obligations, taking into account the relevant      Marion Merrell SA, established in Puteaux (France), Marion
           receipts and a reasonable profit for discharging those            Merrell SA, established in Barcelona (Spain), Sanova Pharma
           obligations;                                                      GmbH, established in Vienna (Austria), Temmler Pharma GmbH
                                                                             & Co.KG, established in Marburg (Germany), Schuck GmbH,
      —    fourth, where the undertaking which is to discharge public        established in Schwaig (Germany), Laboratoires Roussell Lda,
           service obligations is not chosen in a public procurement         established in Mem Martins (Portugal), Laboratoires Roussell
           procedure, the level of compensation needed has been deter-       Diamant SARL, established in Puteaux, Roussel Iberica SA,
           mined on the basis of an analysis of the costs which a            established in Barcelona, (represented by B. Sträter and
           typical undertaking, well run and adequately provided with        M. Ambrosius), Gerot Pharmazeutika GmbH, established in
           means of transport so as to be able to meet the necessary         Vienna, (represented by K. Grigkar), Cambridge Healthcare
           public service requirements, would have incurred in dischar-      Supplies Ltd, established in Rackhearth (United Kingdom),
           ging those obligations, taking into account the relevant          (represented by M. D. Vaughan, QC, K. Bacon, barrister, and
           receipts and a reasonable profit for discharging the              S. Davis, solicitor), and Laboratoires pharmaceutiques Trenker
           obligations.                                                      SA, established in Brussels, (represented by L. Defalque and
                                                                             X. Leurquin), the Court, composed of: G.C. Rodríguez Iglesias,
                                                                             President, J.-P. Puissochet, M. Wathelet, R. Schintgen, C.W.
3.   Article 77 of the EC Treaty (now Article 73 EC) cannot be
                                                                             A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.
     applied to public subsidies which compensate for the additional
                                                                             O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
     costs incurred in discharging public service obligations without
                                                                             F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
     taking into account Regulation No 1191/69, as amended by
                                                                             A. Rosas, Judges; S. Alber, Advocate General; M. Múgica
     Regulation No 1893/91.
                                                                             Arzamendi, Principal Administrator, for the Registrar, has given
                                                                             a judgment on 24 July 2003, in which it:
(1) OJ C 273 of 23.9.2000.                                                   1.   Dismisses the appeal;
                                                                             2.   Orders the Commission of the European Communities to pay the
                                                                                  costs of these proceedings and those relating to the application for
                                                                                  interim relief.
                  JUDGMENT OF THE COURT
                                                                             (1) OJ C 70 of 22.3.2003.
                           of 24 July 2003
in Case C-39/03 P: Commission of the European
      Communities v Artegodan GmbH and Others (1)
(Appeal — Directives 65/65/EEC and 75/319/EEC —                                                   ORDER OF THE COURT
Medicinal products for human use — Anorectics: amfepra-
mone, clobenzorex,            fenproporex,      norpseudoephedrine,                                     (First Chamber)
phentermine — Withdrawal of a marketing authorisation —
Competence of the Commission — Conditions for withdrawal)                                               of 24 July 2003
                                                                             in Case C-166/02 (Reference for a preliminary ruling from
                           (2003/C 226/02)                                   the Tribunal Judicial da Comarca de Alcácer do Sal): Daniel
                                                                             Fernando Messejana Viegas v Companhia de Seguros
                                                                                   Zurich SA, Mitsubishi Motors de Portugal SA (1)
        (Languages of the case: German, English and French)
                                                                             (Article 104(3) of the Rules of Procedure — Answer which
                                                                             may be clearly deduced from existing case-law — Second
                                                                             Directive 84/5/EEC — Compulsory insurance against civil
In Case C-39/03 P, Commission of the European Communities,                   liability in respect of motor vehicles — Types of civil
(Agents: R. B. Wainwright and H. Støvlbæk, assisted by                                   liability — Minimum amounts of cover)
B. Wägenbaur): Appeal against the judgment of the Court of
First Instance of the European Communities (Second Chamber,                                             (2003/C 226/03)
Extended Composition) of 26 November 2002 in Joined Cases
T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00                                        (Language of the case: Portuguese)
and T-141/00 Artegodan and Others v Commission [2002]
ECR II-4945, seeking to have that judgment set aside, the                    (Provisional translation; the definitive translation will be published in
other parties to the proceedings being: Artegodan GmbH,                                            the European Court Reports)
established in Lüchow (Germany), (represented by U. Doepner),
Bruno Farmaceutici SpA, established in Rome (Italy), Essential               In Case C-166/02: Reference to the Court under Article 234 EC
Nutrition Ltd, established in Brough (United Kingdom), Hoechst               by the Tribunal Judicial da Comarca de Alcácer do Sal (Portugal)
 ---pagebreak--- 20.9.2003              EN                             Official Journal of the European Union                                          C 226/3
for a preliminary ruling in the proceedings pending before that                   Member States relating to turnover taxes — Common
court between Daniel Fernando Messejana Viegas and                                system of value added tax: uniform basis of assessment
Companhia de Seguros Zurich SA, Mitsubishi Motors de
Portugal SA, participant: CGU International Insurance plc —
Agência Geral em Portugal, Instituto de Solidariedade e                      2.   Order the defendant to pay the costs.
Segurança Social (ISSS), on the interpretation of the Second
Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to
                                                                             Pleas in law and main arguments
insurance against civil liability in respect of the use of motor
vehicles (OJ 1984 L 8, p. 17), the Court (First Chamber),
composed of: M. Wathelet, President of the Chamber, P. Jann
(Rapporteur) and A. Rosas, Judges; S. Alber, Advocate General;               The Commission charges the Kingdom of Spain with having
R. Grass, Registrar, has made an order on 24 July 2003, the                  failed to fulfil its obligations under a number of provisions of
operative part of which is as follows:                                       the Sixth Directive on two grounds:
                                                                             1.   Application of a deducible proportion to taxable persons
                                                                                  who carry out only transactions in respect of which value
Article 1(2) of the Second Council Directive 84/5/EEC of
                                                                                  added tax is deductible (Article 102(1) of the Spanish Law
30 December 1983 on the approximation of the laws of the
                                                                                  on VAT).
Member States relating to insurance against civil liability in respect
of the use of motor vehicles precludes national laws which provide for a
number of types of civil liability applicable to road-traffic accidents
laying down, in respect of one of them, maximum amounts of com-                   According to the Commission, the Spanish provision
pensation that are lower than the minimum amounts of cover laid                   broadens unlawfully the scope of the deductible propor-
down by that article.                                                             tion in that it applies not only to taxable persons who
                                                                                  carry out transactions in respect of which value added tax
                                                                                  is deductible and transactions in respect of which value
                                                                                  added tax is not deductible (mixed taxable persons), but
                                                                                  also to those who carry out only taxable transactions (fully
(1) OJ C 156 of 29.6.2002.                                                        taxable persons), just because they have received subsidies
                                                                                  which are not part of the basis of assessment of their
                                                                                  taxable transactions. According to Article 17(5) of the
                                                                                  Sixth Directive, the deductible proportion mechanism
                                                                                  applies only where taxable persons carry out both
                                                                                  transactions which are taxable but exempt and taxable
                                                                                  transactions.
Action brought on 14 May 2003 by the Commission of the
   European Communities against the Kingdom of Spain
                                                                                  Furthermore, the inclusion of subsidies in the deductible
                                                                                  proportion as regards mixed taxable persons is an option
                          (Case C-204/03)
                                                                                  which the Member States have and constitutes an
                                                                                  exception to the general principle of deduction of the
                          (2003/C 226/04)                                         amounts borne by way of VAT in respect of taxable
                                                                                  unexempted transactions. Therefore, that option may not
An action against the Kingdom of Spain was brought before the                     be exercised in order to treat unfavourably situations other
Court of Justice of the European Communities on 14 May                            than those provided for by the directive, contrary to what
2003 by the Commission of the European Communities, repre-                        has been provided by the Community legislature. The
sented by Enrico Traversa, Legal Adviser, and Lidia Lozano                        possible consequences for the neutrality of the tax arising
Palacios, of its Legal Service, acting as Agents.                                 from the use by the Member States of the option provided
                                                                                  for under Article 19 of the directive cannot justify the
                                                                                  extension by the Spanish authorities of the restriction on
                                                                                  deduction to fully taxable persons, since the necessary
The applicant claims that the Court should:                                       legal basis for it is lacking and it is a measure contrary to
                                                                                  the directive.
1.   Declare that, by maintaining in force provisions which pro-
     vide for a deductible proportion for taxable persons who                     The Spanish provision at issue results in double taxation,
     carry out only taxable transactions, and which lay down a                    since the taxable person who receives a subsidy uses it as
     special rule which limits the right to deduct VAT on the                     part of the consideration for the purchase of goods or
     purchase of goods or services just because they were sub-                    services. Such purchases are taxed in accordance with the
     sidised, the Kingdom of Spain has failed to fulfil its obliga-               Sixth Directive, so that the amount of the subsidy is
     tions under Community law and, in particular, Articles 17                    already subject to the relevant VAT. If that amount is then
     and 19 (2) and (5) of Sixth Council Directive 77/388/EEC (1)                 included in the denominator for the deductible propor-
     of 17 May 1977 on the harmonization of the laws of the                       tion, resulting in the restriction of the right to deduct of