CELEX: C1995/333/09
Language: en
Date: 1995-12-09 00:00:00
Title: ORDER OF THE COURT (Sixth Chamber) of 26 October 1995 in Joined Cases C-199/94 P and C-200/94 P: Pesquería Vasco-Montañesa SA (Pevasa) and Compañia Internacional de Pesca y Derivados SA (Inpesca) v. Commission of the European Communities (Fisheries - Community financial aid for the construction of fishing vessels - Action for annulment - Time-limits - Action for damages - Admissibility - Appeal manifestly unfounded)

9. 12 . 95            L^N                   Official Journal of the European Communities                                  No C 333/5
                JUDGMENT OF THE COURT                                       document serving as invoice has not been issued or the
                          ( Fifth Chamber )                                price has not been received.
                       of 26 October 1995
in Case C-144/94 (reference for a preliminary ruling from              (') OJ No C 188 , 9 . 7. 1994 .
the Commissione Tributaria Centrale ): Ufficio IVA di
                   Trapani v. Italittica SpA (')
 (Sixth VAT Directive — Interpretation ofArticle 10 (2) —
 Chargeable event — Scope of the derogation granted to the
                           Member States)
                            ( 95/C 333/08 )
                                                                                       ORDER OF THE COURT
                 (Language of the case: Italian)
                                                                                               ( Sixth Chamber )
                                                                                             of 26 October 1995
(Provisional translation; the definitive translation will be           in Joined Cases C-199/94 P and C-200/94 P: Pesquería
          published in the European Court Reports)                     Vasco-Montañesa SA ( Pevasa ) and Compañía Internacional
                                                                       de Pesca y Derivados SA ( Inpesca ) v. Commission of the
                                                                                        European Communities (')
In Case C-144/94 : reference to the Court under Article 177            (Fisheries - Community financial aid for the construction of
of the EC Treaty by the Commissione Tributaria Centrale                fishing vessels — Action for annulment — Time-limits —
( Central Tax Court ) for a preliminary - ruling in the                Action for damages — Admissibility — Appeal manifestly
proceedings pending before that court between Ufficio IVA                                          unfounded)
di Trapani and Italittica SpA — on the interpretation of                                          95 /C 333 /09
Article 10 ( 2 ) of the Sixth Council Directive of 17 May 1977
( 77/388/EEC ) on the harmonization of the laws of the
Member States relating to turnover taxes — Common
system of value added tax : uniform basis of assessment ( OJ                         (Language of the case: Spanish)
1977 L 145 , p. 1 ) — the Court ( Fifth Chamber ), composed
of D. A. O. Edward, President of the Chamber, J.
C. Moitinho de Almeida ( Rapporteur ), C. Gulmann, P. Jann             (Provisional translation; the definitive translation will be
und L. Sevon, Judges; F. G. Jacobs, Advocate-General; L.                       published in the European Court Reports)
Hewlett, Administrator, for the Registrar, gave a judgment
on 26 October 1995 , the operative part of which is as
follows :                                                              In Joined Cases C-199/94 P and C-200/94 P : Pesqueria
                                                                       Vasco-Montanesa SA ( Pevasa ), a company incorporated
                                                                       under Spanish law, established in Bermeo ( Spain ),
1 . The third subparagraph of Article 10 (2) of the Sixth              represented by Maria Iciar Angulo Fuertes, of the Biscay
     Council Directive (77/388/EEC) of 17 May 1977 on the              Bar, with an address for service in Luxembourg at the
     harmonization of the laws of the Member States relating           Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt, and
     to turnover taxes — Common system of value added                  Companfa Internacional de Pesca y Derivados SA ( Inpesca ),
     tax : uniform basis of assessment allows the Member               a company incorporated under Spanish law, established in
     States to provide that the receipt of the price is the event      Bermeo ( Spain ), represented by Maria Iciar Angulo Fuertes,
     which, for all supplies of services, renders the tax              of the Biscay Bar, with an address for service in Luxembourg
     chargeable.                                                       at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt
                                                                       — appeals against the order of the Court of First Instance of
                                                                       the European Communities ( Second Chamber ) of 28 April
                                                                       1994 in Joined Cases T-452/93 and T-453/93 Pevasa and
2. A Member State which avails itself of the derogation                Inpesca v. Commission [ 1994] ECR 11-229 , seeking: ( 1 ) to
     provided for in the third subparagraph of Article 10 (2)          have that order set aside; ( 2 ) annulment of the decisions of
     of Directive 77/388/EEC is not required to lay down 'a            the Commission of 18 December 1990 and 8 November
     specified period from the date of the chargeable event '           1991 refusing the appellants the financial aid they had
     within which the invoice or document serving as invoice           sought pursuant to Council Regulation ( EEC ) No 4028/86
     must be issued even where the price has not yet been              of 18 December 1986 on Community measures to improve
     received.
                                                                       and adapt structures in the fisheries and aquaculture sector
                                                                       ( OJ 1986 L 376 , p. 7 ); ( 3 ) an order directing the
                                                                       Commission to take the necessary steps to grant to the
3 . The Member State which avails itself of the derogation             appellants the financial aid requested; and ( 4 ) an order
     in the third subparagraph of Article 10 (2) of Directive          directing the Commission to pay compensation for the
     77/388/EEC is not required to lay down detailed rules             damage caused by its conduct, the other party to the
     for documentation and recording of the completed                  proceedings being the Commission of the European
     service and the payment for it whenever the invoice or            Communities ( Agents : Francisco Jose Santaolalla Gadea
 ---pagebreak--- No C 333/6             EN                  Official Journal of the European Communities                                    9 . 12 . 95
and Jose Luis Iglesias Buhigues ) — the Court ( Sixth                     and method of manufacture are familiar to consumers,
Chamber ), composed of C. N. Kakouris, President of the                   even though they differ in their secondary characteristics
Chamber, G. Hirsch, G. F. Mancini ( Rapporteur ), F.                      — not, however, decisively as regards type, but simply in
A. Schockweiler and P. J. G. Kapteyn, Judges; C. O. Lenz,                 the determination of different national varieties and in
Advocate-General; R. Grass, Registrar, made an order on                   that case the majority of those national varieties are
26 October 1995 , the operative part of which is as                       lawfully produced and.marketed primarily for domestic
follows :                                                                 consumption in the Member State of their origin ?
                                                                          Further, whenever a product is put on the market within
                                                                          the Community for sale for consumption exclusively or
1 . The appeals are dismissed.                                            almost exclusively within one Member State where there
                                                                          is a demand on the part of consumers, especially when
                                                                          the product is known under a traditional name, then,
2 . The appellants are ordered to pay the costs.                          even where the product is also produced in another
                                                                          Member State — not, however, for marketing primarily
                                                                          for domestic consumption, but with the exclusive, or
(') OJ No C 254 , 10 . 9 . 1994 .                                         almost exclusive, intention that it will be exported to the
                                                                          Member State where it is consumed — is the general
                                                                          familiarity of consumers with the product within the
                                                                          Community as regards its general and essential
                                                                          characteristics to be assessed and judged by reference to
                                                                          the consumers within the said Member State where that
                                                                          product is marketed for consumption ?
Reference for a preliminary ruling by the Simvoulio tis               3 . If the answer to the previous questions is in the
Epikratias ( Council of State ), Greece, by a decision of that            affirmative, in view of the information set out above
court of 20 June 1995 in the case of Canadane Cheese                      contained in Communication 9539/VI/24 . 2 . 1994 from
Trading AMBA and Adelfi G. Kouri AEVE v. Ministers of                     the Director-General of the Directorate-General for
( 1 ) Commerce, ( 2 ) Finance, ( 3 ) Health, Welfare and Social           Agriculture of the European Communities and the
                  Security, and ( 4 ) Agriculture                         accompanying report and consequently the data
                        ( Case C-3 17/95 )                                extracted — first, as regards the proportionate
                          ( 95/C 333/ 10 )                                relationship between total consumption within the
                                                                          Community of cheese under the name feta and
                                                                          consumption within the Community of cheese under the
Reference has been made to the Court of Justice of the                    same name manufactured from sheep and goat's milk
European Communities by a decision of the Simvoulio tis                   and by the natural straining method; secondly, as
Epikratias, which was received at the Court Registry on                   regards the proportionate relationship between
10 October 1995 , for a preliminary ruling in the case of                 consumption of feta cheese from sheep and goat's milk
Canadane Cheese Trading AMBA and Adelfi G. Kouri                          within the Community and consumption of the same
AEVE v. Ministers of ( 1 ) Commerce, ( 2 ) Finance,                       product in Greece; and thirdly, as regards the
( 3 ) Health, Welfare^and Social Security, and ( 4 ) Agriculture          proportionate relationship between production,
on the following questions :                                              domestic consumption and export in Denmark, and also
                                                                          in all the other Community countries, of cheese under
                                                                          the name ' feta' made from cow's milk by the
1 . Does it follow from an interpretation of Articles 30 and              ultra-filtration process — is it possible to accept that
      36 of the EEC Treaty that a Member State may refuse to              white cheese under the name 'feta ' may be produced
      allow the use of a certain commercial name for products             in the other Community countries, in particular in
      produced by and exported from another Community                     Denmark, with the almost exclusive aim of exporting it,
      country for circulation within that State where those               as regards intra-Community trade, to Greece which is
      products are so different from the point of view of their           almost the only Community country where cheese is
      composition and method of manufacture from products                 marketed for consumption under the name feta ?
      which are generally known by that name in the                       Furthermore, should general familiarity within the
      Community that they could not be regarded as similar                Community with cheese known under the commercial
      products falling within the same category ?                         name feta, in particular as regards its general and
                                                                          essential characteristics, be assessed and judged by
                                                                          reference to consumers of feta cheese in Greece, for
2 . In that situation, should general familiarity with the                whom ' feta' means white cheese produced from sheep
      product under a particular name within the Community                and or goat's milk by the natural straining method,
      be assessed and judged in relation to consumers within              whereas cheese manufactured from cow's milk by the
      the Member States of the Community, since it is their               ultra-filtration process is so essentially different from
      protection that is sought ? Does 'products generally                the point of view of raw material and method of
      known under a certain name by consumers within the                  manufacture that it is impossible to treat it as a similar
      Community' mean similar products, the general and                   product ? In consequence, is Article 83 of the Greek
      essential characteristics of which as regards composition           Foodstuffs Code, in the version in fbrce when the