CELEX: C1997/142/22
Language: en
Date: 1997-05-10 00:00:00
Title: Reference for a preliminary ruling from the Amt der Tiroler Regierung (Landesvergabeamt) by order of that body of 7 November 1996 in the review proceedings brought by Josef Köllensperger GmbH & Co KG and Atzwanger AG against Gemeindeverband Bezirkskrankenhaus Schwaz (Case C-103/97)

No C 142/10            EN                  Official Journal of the European Communities                                          10 . 5 . 97
Deduction of the VAT liable to be paid in connection with             Pleas in law and main arguments adduced in support:
real property acquired by a taxable person in joint
ownership or co-ownership with individuals must be                    The treatment of waste oil is regulated in the Federal
authorized immediately and unconditionally, in proportion             Republic of Germany primarily by the Abfallgesetz ( Law
of course to the part of the property used for business               on Waste Products ) ( until 6 October 1996 ) and the
purposes .                                                            Kreislaufwirtschafts- und Abfallgesetz ( Law on Economic
                                                                      Cycles and Waste Products) ( since 7 Oktober 1996 ) and
Excluding that deduction constitutes a breach of the                  by the subordinate legislation enacted pursuant thereto
principle of neutrality of the tax which, where the                   ( the Altolverordnung ( Regulation on Waste Oils ), the Ab­
property is resold, would be charged twice on the same                fallbestimmungsverordnung ( Regulation on dealing with
taxable amount, that is to say the price of that part of the          Waste Products ), the Reststoffbestimmungsverordnung
property used for business purposes. Where property is                ( Regulation dealing with Residual Matter ) and the Abfall­
resold, the trader or other self-employed person carries out          und Reststoffiiberwachungsverordnung ( Regulation on the
a taxable transfer and is liable to pay to the tax                    Control of Waste Products and Residual Matter)). None
authorities the VAT received from the purchaser of the                of the provisions of that legislation gives priority to the
property, even though that same taxable person, on his                regeneration of waste oils . According to paragraph 6 ( 1 )
purchase of that same property, had paid the VAT charged              of the Kreislaufwirtschafts- und Abfallgesetz ( BGB1 . I
him hy the vendor without any possibility of deduction for            1994, p. 2705 ), waste products may be used as materials
the part to be used for business purposes, in short being             or used for energy purposes. Priority is given to whichever
treated as though he were the end-user of the entire                  form of utilization is better adapted to the environment.
property.                                                             Rules may be adopted giving priority either to use for
                                                                      material purposes or to utilization for energy purposes,
In essence, by providing for that derogation from the                 depending on which use constitutes a better solution in
principle that VAT paid on business costs should be                   environmental terms . Although discussion took place at
deductible, the Italian legislature has arbitrarily introduced        the time of the adoption of the Kreislaufwirtschafts- und
an irrebuttable presumption of evasion in relation to all             Abfallgesetz as to whether priority should be given to
purchases by taxable persons jointly with private                     regeneration, such priority was not ultimately provided for
individuals of property intended for undifferentiated use,            in that Law. This is contrary to the wording of Article 3(1 )
without taking into account the actual, even though                   of Directive 75/439/EEC, as amended by Directive 87/101 /
partial, use of that investment property for the business             EEC, and to the choice made by the European legislature,
requirements.                                                         as expressed in the recitals in the preamble to Directive
                                                                      87/ 101 /EEC: regeneration is generally the most rational
(') OJ No L 145 , 13 . 6 . 1977, p . 1 .                              way of re-using waste oils in view of the energy savings
                                                                      which can be achieved, and priority should therefore be
                                                                      given to the processing of waste oils by regeneration ( see
                                                                      the second recital in the preamble to Directive 87/101 /
                                                                      EEC ). Although the prohibition of the mixing of waste
                                                                      oils laid down by paragraphs 2 ( 1 ) and 4 ( 1 ) and ( 2 ) of
Action brought on 10 March 1997 by the Commission of                  the Altolverordnung prevents high-grade waste oils from
the European Communities against the Federal Republic                 being extracted by the regenerating industry, and thus
                             of Germany                               represents a condition of regeneration, it does not
                          ( Case C-102/97)                            establish any priority in favour of regeneration.
                             97/C 142/21 )
                                                                      ( 1 ) Council Directive 75/439/EEC of 16 June 1975 on the
                                                                            disposal of waste oils ( OJ No L 194, 1975, p. 31 ).
An action against the Federal Republic of Germany was                 ( 2 ) Council   Directive       87/ 101 /EEC of 22  December     1986
brought before the Court of Justice of the European                         amending Directive 75/439/EEC on the disposal of waste oils
Communities on 10 March 1997 by the Commission of                           ( OJ No L 42 , 12 . 2 . 1987, p. 43 ).
the European Communities, represented by Gotz zur
Hausen, Legal Adviser in the Commission, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, of the Legal Service of the European
Commission, Wagner Centre C 254, Kirchberg.
                                                                      Reference for a preliminary ruling from the Amt der
The applicant claims that the Court should:                           Tiroler Regierung (Landesvergabeamt) by order of that
                                                                      body of 7 November 1996 in the review proceedings
— declare that, by failing to give priority to the material,          brought by Josef Kollensperger GmbH & Co KG and
     rather than the thermal, processing of waste oils,                           Atzwanger AG against Gemeindeverband
     notwithstanding that such processing is not precluded                                 Bezirkskrankenhaus Schwaz
     by any economic, technical or organizational                                                   ( Case C-103/97 )
    constraints, the Federal Republic of Germany has
     failed to fulfil its obligations under Article 3 ( 1 ) of                                        ( 97/C 142/22 )
     Council Directive 75/439/EEC H as amended by
    Directive 87/ 101 /EEC ( 2 ),                                     Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Amt der Tiroler
— order the Federal Republic of Germany to pay the                    Landesregierung, Landesvergabeamt ( Office of the
    costs .                                                           Regional Government for the Tyrol — Regional Public
 ---pagebreak--- 10 . 5 . 97            EN                   Official Journal of the European Communities                                No C 142/ 11
Procurement Office ) of 7 November 1996 , which was                         Community incurs liability even for lawful legislative
received at the Court Registry on 10 March 1997, for a                      acts. That plea was put forward in the initial
preliminary ruling in the review proceedings brought by                     application under the heading 'Sonderopfer'
Josef Kollensperger GmbH & Co KG and Atzwanger AG                           (exceptional burdens ). In any event, the submissions in
against Gemeindeverband Bezirkskrankenhaus Schwaz                           the reply do not constitute a new plea in law, but at
( association of municipalities for the Schwaz district                     most a new argument. Liability for lawful legislative
hospital ) on the following questions :                                     acts rests on the same legal basis as liability for
                                                                            unlawful ones, namely the second paragraph of
( a ) Is Article 2 of Council Directive 89/665/EEC (') of                   Article 215 of the Treaty. The objective pursued by the
      21 December 1989 to be interpreted as meaning that                    applicants, namely damages for legislative acts of the
      the (Tyrol ) Regional Public Procurement Office,                      Community, is the same . The task of the Court is also
      established by the (Tyrol ) regional law of 6 June 1994               the same, since the rationale for liability for lawful
      on the award of public contracts ( LGB1 No 87/1994 ),                 legislative acts is essentially the same as that for
      is a review body within the meaning of Article 2 ( 8 ) of             unlawful ones, namely that individual parties are not
      the Directive ?                                                       to be singled out to bear exceptional burdens.
( b ) Did the abovementioned law on the award of public                — The Court of First Instance infringed Community law
      contracts adequately secure the transposition into                    by dismissing the pleas in law based on breach of the
      national law of Council Directive         89/665/EEC of               rights of the defence, the principle of non­
      21 December 1989 on the coordination of the laws,                     discrimination, the principle of the protection of
      regulations and administrative provisions relating to                 legitimate expectations, the fundamental freedom to
      the application of review procedures to the award of                  pursue an economic activity, and the prohibition on
      public supply and public works contracts, in regard to                delegation of legislative competence . In particular, the
      the review procedures mentioned in Article 1 thereof?                 Court of First Instance declined, when applying the
                                                                            principle of non-discrimination and in the context of
(') OJ No L 395 , 30 . 12 . 1989 , p . 33 .                                 the freedom to pursue an economic activity, to take
                                                                            account of the facts of the case adduced before it, i.e.
                                                                            to recognize the individual effects of the Regulation in
                                                                            the particular case of the applicant. If that approach
                                                                            were correct, examination of basic rights ( including
                                                                            the principle of non-discrimination) in an individual
Appeal brought on 10 March 1997 by Atlanta AG against                       case, as continually requested by the applicant, could
the judgment delivered on 11 December 1996 by the                           never take place in principle . Examination would
Fourth Chamber (Extended Composition ) of the Court of                      always be curtailed at the outset as to whether
First Instance of the European Communities in Case                          application of the contested rule ( in this case Title IV
T-521/93 between, of the one part, Atlanta AG and                           of the Regulation ) to the particular circumstances in
Others and, of the other part, the Council of the European                 which an individual party is placed infringes
 Union and the Commission of the European Communities                       fundamental rights . It would be conceivable in those
                                                                           circumstances that, despite having its fundamental
                        ( Case C-104/97 P                                   rights individually affected by the application of a
                           ( 97/C 142/23 )                                  Community measure, the applicant would have no
                                                                           procedure available for complaint.
An appeal against the judgment delivered on 11 December
                                                                       (') OJ No C 40 , 8 . 2 . 1997, p . 15 .
1996 by the Fourth Chamber ( Extended Composition ) of
the Court of First Instance of the European Communities
in Case T-521 /93 between, of the one part, Atlanta AG
and Others and, of the other part, the Council of the
European Union and the Commission of the European
Communities, supported by the French Republic and the
United Kingdom, was brought before the Court of Justice                Reference to the Court for preliminary rulings by the
of the European Communities on 10 March 1997 by                        Pretura Circondariale di Trento by an order of 7 March
Atlanta AG, represented by Erik Undritz and Gerrit                     1997 in the proceedings pending before that court
Schohe, Rechtsanwalte, with an address for service in                         between Leonardo Gulli and Ente Poste Italiane
Luxembourg at the Chambers of Marc Baden , 34b Rue                                               ( Case C-105/97)
Philippe II, L-2340 Luxembourg.
                                                                                                   ( 97/C 142/24 )
The appellant claims that the Court should set aside the
judgment of the Court of First Instance (').                           Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Trento (Magistrate's Court for the
                                                                       District of Trento ) of 7 March 1997, which was received
— The Court of First Instance was procedurally incorrect               at the Court Registry on 13 March 1997, for a
      in ruling inadmissible ( pursuant to Article 48 ( 2 ) of its     preliminary ruling in the case Leonardo Gulli and Ente Po­
      Rules of Procedure ) the applicants ' plea that the              ste Italiane, on the following question: