CELEX: C2000/122/26
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-62/00: Reference for a preliminary ruling by the Court of Appeal (England & Wales), by order of that court of 14 December 1999, in the case of Marks & Spencer plc against the Commissioners of Customs & Excise

29.4.2000                 EN                     Official Journal of the European Communities                                       C 122/15
Is the answer to the question referred different if the non-na-             Reference for a preliminary ruling made by the Court of
tional spouse indirectly assists the national of a Member State             Session, Scotland, by request of that Court of 18 February
in carrying on the provision of services in other Member States             2000, in the case of Hydro Seafood GSP Ltd against the
by carrying out childcare?                                                                          Scottish Ministers
                                                                                                      (Case C-64/00)
(1) of 21 May 1973 on the abolition of restrictions on move and
    residence within the Community for nationals of Member States                                    (2000/C 122/27)
    with regard to establishment and the provision of services, OJ
    L 172, 28.06.1973. p. 14.
                                                                            Reference has been made to the Court of Justice of the
                                                                            European communities by a request of the Court of Session,
                                                                            Scotland, of 18 February 2000, which was received at the
                                                                            Court Registry on 28 February 2000, for a preliminary ruling
                                                                            in the case of Hydro Seafood GSP Ltd against the Scottish
                                                                            Ministers, on the following questions:
                                                                            1. Where, in implement of an obligation under Directive
                                                                                 93/53/EEC (1) to provide control measures for an outbreak
                                                                                 of a List 1 disease a Member State adopts a domestic
                                                                                 measure the application of which results in the destruction
                                                                                 and slaughter of fish, are the principles of Community
Reference for a preliminary ruling by the Court of Appeal                        law relating to the protection of fundamental rights in
(England & Wales), by order of that court of 14 December                         particular the right of property, to be interpreted as having
1999, in the case of Marks & Spencer plc against the                             placed on a Member State the obligation to adopt measures
              Commissioners of Customs & Excise                                  providing for the payment of compensation.
                                                                                 (a) to an owner of fish which are destroyed; and
                             (Case C-62/00)
                                                                                 (b) to an owner of fish which are required to be slaughtered
                                                                                     immediately, thereby necessitating the immediate sale
                            (2000/C 122/26)                                          of those fish by that owner?
                                                                            2. If the Member State is required to adopt such measures,
Reference has been made to the Court of Justice of the                           what are the criteria of interpretation needed by a national
European Communities by an order of the Court of Appeal                          court to determine whether the measures that are adopted
(England & Wales), of 14 December 1999, which was received                       are compatible with the fundamental rights, in particular
at the Court Registry on 28 February 2000, for a preliminary                     the right to property, which the Court ensures and which
ruling in the case of Marks & Spencer plc against the                            derive in particular from the European Convention on
Commissioners of Customs & Excise on the following question:                     Human Rights?
                                                                            3. In particular, do the criteria require that the measures
In the circumstances in which a member State has failed to                       differentiate between the situation where the outbreak of
implement properly in its domestic legislation Article 11. A of                  the disease was due to the fault of the owner of the fish
Council Directive 77/388 (1), is it compatible with the principle                concerned and the situation where the owner was not at
of the effectiveness of the rights that a taxable person derives                 fault?
from Article 11.A, or with the principle of the protection of
legitimate expectations, to enforce legislation which removes               4. Is Directive 93/53/EEC invalid as being in breach of the
with retrospective effect a right under national law to reclaim                  fundamental right of property in not making provision for
sums paid, by way of VAT, more than three years before the                       the payment of compensation to (a) an owner of fish
claim is made?                                                                   which are destroyed and (b) to an owner of fish which are
                                                                                 required to be slaughtered immediately, thereby necessitat-
                                                                                 ing the immediate sale of those fish by that owner
                                                                                 in circumstances where an outbreak of ISA has been
(1) of 17 May 1977 on the harmonization of the laws of the Member                confirmed?
    States relating to turnover taxes — Common system of value
    added tax: uniform basis of assessment, OJ L 145, 13.06.1977,
    p. 1, rectificatif OJ L 149, 17.06.1977, p. 26.                         (1) Council Directive 93/53/EEC, of 24 June 1993, introducing
                                                                                minimum Community measures for the control of certain fish
                                                                                diseases OJ L 175, 19.07.1993, p. 23.