CELEX: C1998/299/20
Language: en
Date: 1998-09-26 00:00:00
Title: Reference for a preliminary ruling by the Pretura Circondariale di Firenze, by order of that court of 20 June 1998, in criminal proceedings against Giovanni Carra, Alessandra Colombo and Barbara Gianassi (Case C-258/98)

26.9.98              EN                 Official Journal of the European Communities                                 C 299/11
Appeal brought on 9 July 1998 by NV Koninklijke KNP                    judgment should be set aside. Moreover, the Court
BT against the judgment delivered on 14 May 1998 by the                contravened general principles of law, in particular the
Court of First Instance of the European Communities in                 principle of equal treatment and the principle of
Case T-309/94 between NV Koninklijke KNP BT and the                    proportionality, Article 190 of the EC Treaty and
         Commission of the European Communities                        Article 15(6) of Council Regulation No 17 by fixing a
                     (Case C-248/98 P)                                 fine on the basis of the Commission's alternative
                                                                       method', that is to say by applying, without specifying
                       (98/C 299/19)                                   more detailed reasons, a basic rate of 7,5 % for the
                                                                       period following 1989 as well,
An appeal against the judgment delivered on 14 May
1998 by the Court of First Instance of the European                Ð infringement of the rights of defence and the
Communities in Case T-309/94 between NV Koninklijke                    requirement to state reasons. The Court of First
KNP BT and the Commission of the European                              Instance infringed general principles of law, in
Communities was brought before the Court of Justice of                 particular the principle of equal treatment and the
the European Communities on 9 July 1998 by NV                          principle of proportionality, Article 190 of the EC
Koninklijke KNP BT, represented by T. R. Ottervanger,                  Treaty and Article 15 of Regulation No 17 by fixing a
with an address for service in Luxembourg at the                       fine on a basis which included the internal turnover of
Chambers of Loeff Claeys Verbeke, 56Ð58 rue Charles                    Badische, a German subsidiary of KNP,
Martel.
The appellant claims that the Court should:                        Ð contrary to Community law (principle of equal
                                                                       treatment, principle of proportionality, Article 190 of
                                                                       the EC Treaty and, above all, Article 15 of Regulation
1. set aside the judgment of the Court of First Instance of            No 17) the Court of First Instance, when itself fixing
    14 May 1998 in Case T-309/94 (1),                                  the fine, wrongly took mid-1986 as the date on which
                                                                       the infringement commenced as regards Badische as
                                                                       well.
2. annul the Commission Decision of 13 July 1994 (IV/
    33.833) and the fine imposed on the applicant, or
                                                                   (1) OJ C 209, 4.7.1998, p. 30.
    reduce the fine, in accordance with the application
    submitted on 7 October 1994 or, alternatively, refer
    the case back to the Court of First Instance for a
    ruling on the question whether that decision should (in
    part) be declared void,
3. order the Commission to pay the costs of proceedings            Reference for a preliminary ruling by the Pretura
    before the Court of First Instance and the Court of            Circondariale di Firenze, by order of that court of 20 June
    Justice.                                                       1998, in criminal proceedings against Giovanni Carra,
                                                                            Alessandra Colombo and Barbara Gianassi
Pleas in law and main arguments adduced in support:                                       (Case C-258/98)
                                                                                           (98/C 299/20)
Ð The highly defective statement of reasons for the
    decision should have been grounds for the Court of
    First Instance to annul it. In particular, the decision
                                                                   Reference has been made to the Court of Justice of the
    gives no indication whatsoever of the method used by
                                                                   European Communities by an order of the Pretura
    the Commission used to determine a fine that is
                                                                   Circondariale di Firenze (Magistrate's Court, District of
    related to the turnover of the various undertakings for
                                                                   Florence) of 20 June 1998, which was received at the
    which KNP is held responsible and to the period
                                                                   Court Registry on 15 July 1998, for a preliminary ruling
    during which and the extent to which each of them
                                                                   in criminal proceedings against Giovanni Carra,
    was involved in an infringement. By giving no, or
                                                                   Alessandra Colombo and Barbara Gianassi on the
    inadequate, reasons why the Court did not annul the
                                                                   following questions:
    decision, the Court infringed Article 190 of the EC
    Treaty,
                                                                   (a) Whether Articles 86 and 90 of the EC Treaty, as
Ð in its judgment the Court should have dealt with                       interpreted by the judgment of the Court of Justice of
    KNP's plea that the Commission wrongly imposed a                     the European Communities of 11 December 1997 (1),
    fine for the period from 1989, or (alternatively) that as            have direct effect in the sense that they require
    involvement was marginal, the Commission should                      Member States not to impose any general and
    have imposed a much reduced fine. By wholly failing                  absolute prohibition of acting as an employment
    to dealing with those particular circumstances, the                  agency and consequently require the national court to
    Court infringed Article 190 of the EC Treaty and the                 treat any activity as a private intermediary for the
 ---pagebreak--- C 299/12                EN                 Official Journal of the European Communities                                   26.9.98
      placement of employees as not being contrary to                 payment of tolls by the user constitutes a supply of
      criminal law, with the result that the relevant                 services which must be subjected to value added tax. The
      penalising provisions of national law must be                   fact that that activity is carried out by public bodies does
      disapplied.                                                     not mean that it does not fall within the scope of VAT,
                                                                      since it constitutes an economic activity for the purposes
                                                                      of Article 2 of the sixth VAT Directive and is carried out
(b) Whether Articles 86 and 90 are to be interpreted as               by taxable persons within the meaning of Article 4 of that
      meaning that a system like that deriving from the               Directive, notwithstanding the fact that those persons are
      legislative amendments made by Law No 96 of                     public bodies.
      24 June 1997 and Legislative Decree No 469 of
      23 December 1997 constitutes an abuse of a
      dominant position.
                                                                      As regards the question of own resources, the Commission
                                                                      considers that, where the Sixth VAT Directive is infringed
( ) Case C-55/96 Job Centre [1997] ECR I-7119.
 1
                                                                      and consequently the base for the calculation of own
                                                                      resources is reduced, it must claim the amount of own
                                                                      resources which is owed by reason of that infringement.
                                                                      Otherwise the remaining Member States suffer financial
                                                                      loss and the principle of equality is infringed.
Action brought on 16 July 1998 by the Commission of the               (1) OJ L 145, 13.6.1977, p. 1.
    European Communities against the Hellenic Republic                (2) OJ L 155, 7.6.1989, p. 1.
                                                                      (3) OJ L 155, 7.6.1989, p. 9.
                          (Case C-260/98)
                           (98/C 299/21)
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 16 July 1998 by the Commission of the European
Communities, represented by Dimitrios Goulousis, Legal                Action brought on 21 July 1998 by the Kingdom of the
Adviser, and HeÂleÁne Michard, of its Legal Service, with an               Netherlands against Commission of the European
address for service in Luxembourg at the office of Carlos                                       Communities
Gómez de la Cruz, of its Legal Service, Wagner Centre,                                       (Case C-278/98)
Kirchberg.
                                                                                               (98/C 299/22)
The Commission claims that the Court should:
                                                                      An action against the Commission of the European
1. declare that, by failing, contrary to Articles 2 and 4 of          Communities was brought before the Court of Justice of
     the sixth Council Directive 77/388/EEC (1), to subject           the European Communities on 21 July 1998 by the
     to value added tax road tolls, which constitute                  Kingdom of the Netherlands, represented by Marc Fierstra
     consideration paid by the users in return for the                and Nynke Wijmenga, Assistant Legal Advisers at the
     supply to them of a service consisting of the making             Ministry of Foreign Affairs, the Hague.
     available of motorways and other road infrastructure,
     and, in addition, by avoiding in that way payment of
     own resources and of the interest due (Council
     Regulations (EEC, Euratom) No 1552/89 (2) and (EEC,              The applicant claims that the Court should:
     Euratom) No 1553/89 (3)), the Hellenic Republic has
     failed to fulfil its obligations under the EC Treaty;
                                                                      1. annul Commission Decision 98/358/EC (1) of 6 May
2. order the Hellenic Republic to make available to the                   1998 on the clearance of accounts presented by the
     Commission the own resources which have not been                     Member States in respect of the expenditure for 1994
     paid since 1987, together with interest for late                     of the Guarantee Section of the European Agricultural
     payment;                                                             Guidance and Guarantee Fund (notified under
                                                                          document number C(1998) 1124) (1), in so far as a
                                                                          sum of NLG 16 378 716,63 concerning expenditure
3. order the Hellenic Republic to pay the costs.                          on advance payments of export refunds is excluded
                                                                          from Community financing (reference C(98) 1124
                                                                          final);
Pleas in law and main arguments adduced in support:
According to the Commission, the grant of the right to use            2. order the Commission to pay the costs of the
a motorway or other road facility in return for the                       proceedings.