CELEX: C1997/131/12
Language: en
Date: 1997-04-26 00:00:00
Title: Action brought on 19 February 1997 by Kingdom of Belgium against Commission of the European Communities (Case C-75/97)

26 . 4 . 97            EN                    Official Journal of the European Communities                                No C 131 /5
          proceedings brought by Givenchy and pending                   Reference for a preliminary ruling from Juzgado de lo
          before a national court, in which the question of             Social No 1 , Pontevedra, by order of that court of
          the validity of Parfums Givenchy SA's selective               28 January 1997 in the case of Mercedes Gomez Montana
          distribution system was expressly raised,                     v. Claro Sol S. A. and Red Nacional de Ferrocarriles
                                                                                                  Espaftoles (Renfe)
     — by an inaccurate assessment of the effect of the                                            ( Case C-74/97)
          contested decision on the competitive situation and
                                                                                                     ( 97/C 131 / 11 )
          of the importance of that criterion when deciding
          whether a person is individually concerned, and
                                                                        Reference has been made to the Court of Justice of the
     — because the finding that Kruidvat's action was                   European Communities by order of Juzgado de lo Social
          inadmissible deprives it of full and effective legal          ( Social Court) No 1 , Pontevedra, of 28 January 1997,
          protection .                                                  which was received at the Court Registry on 20 February
                                                                        1997, for a preliminary ruling in the case of Mercedes
                                                                        Gomez Montana v. Claro Sol S. A. and Red Nacional de
— Infringement of Article 190 of the EC Treaty.                         Ferrocarriles Espanoles ( Renfe ) on the following question .
                                                                        Does Directive 77/187/EEC ( 1 ) of 14 February 1977 cover
                                                                        circumstances in which the termination of a contract with
                                                                        a cleaning company results in the dismissal of the worker
                                                                        employed by the contractor and the cleaning is taken over
Appeal brought on 20 February 1997 by the French                        by the principal, a rail transport undertaking, using its
Republic against the judgment delivered on 11 December                  own employees ?
1996 by the Fourth Chamber of the Court of First
Instance of the European Communities in case T-70/94                    (') OJ No L 61 , 5 . 3 . 1977, p . 26 .
between Comafrica SpA and Dole Fresh Fruit Europe Ltd
& Co. and the Commission of the European Communities
                supported by the United Kingdom
                        ( Case C-73/97 P )
                           ( 97/C 131 / 10 )                            Action brought on 19 February 1997 by Kingdom of
                                                                                Belgium against Commission of the European
                                                                                                       Communities
An appeal against the judgment delivered on 11 December                                            ( Case C-75/97)
1996 by the Fourth Chamber of the Court of First
                                                                                                      ( 97/C 131 / 12 )
Instance of the European Communities in case T-70/94
between Comafrica SpA and Dole Fresh Fruit Europe Ltd
8c Co. and the Commission of the European Communities                   An action against the Commission of the European
supported by the United Kingdom, was brought before the                 Communities was brought before the Court of Justice of
Court of Justice of the European Communities on                         the European Communities on 19 February 1997 by the
20 February 1997 by the French Republic, represented by                 Kingdom of Belgium, represented by Gerwin van Gerven
Catherine de Salins and Frederic Pascal , acting as agents,             and Koen Coppenholle, of the Brussels Bar, with an
with an address for service in Luxembourg at the French                 address for service in Luxembourg at the Chambers of
Embassy, 9 boulevard Prince Henri .                                     Freddy Brausch, 11 rue Goethe .
                                                                        The Kingdom of Belgium claims that the Court should :
The Appellant claims that the Court should :
                                                                        — declare the application for annulment of Decision
— partially set aside the judgment of the Court of First                     SG(96 ) 4080 final of 4 December 1996 , notified by
     Instance of 11 December 1996 in Case T-70/94 in so                      letter S/11511 of 10 December 1996 concerning
     far as that judgment dismissed the objection of                         measures of aid by the Belgian Government in the
                                                                             framework of the Maribel II/III scheme admissible and
     inadmissibility raised by the defendant.
                                                                             well founded, and
Pleas in law and main arguments adduced in support:                     — order the Commission to pay the costs .
In holding that the applicant undertakings are directly and              Pleas in law and main arguments adduced in support:
individually concerned by the provisions of Article 1 of                — Infringement of Articles 92 and 1 90 of the EC Treaty:
the contested Regulation, the Court of First Instance failed
to take account of either the general scope or the                      — Maribel II/III does not constitute aid
 legislative character of the Regulation which has legal
effects on all of the operators in categories A and B. The                   The Commission refers to the statement in the Belgian
applicants adduced nothing to distinguish them from other                    legislation that the measure is applied to undertakings
category A operators and justify their being regarded as                     'which are exposed to international competition'. The
 individually concerned by the Regulation .                                  Maribel II/III scheme does not, however, benefit only
                                                                             undertakings which actively engage in export; nor is it
                                                                             true that the Maribel II/III scheme benefits only sectors
 ---pagebreak--- No C 131/6          [ EN |                 Official Journal of the European Communities                                     26 . 4. 97
    in difficulty and in which competition is very severe in          Munich) of 5 December 1996, received at the Court
    the Community. The Maribel II/III scheme thus                     Registry on 24 February 1997, for a preliminary ruling in
    constitutes a general measure which, for budgetary                the case of Happy Sports Michl OHG against Finanzamt
    reasons, cannot yet be extended to all sectors .                  ( Tax Office ) Landshut on the following questions:
    The Commission has in no way demonstrated in the                  1 . Does the hiring out at an hourly charge of sports
    contested decision to what extent the Maribel II/III                   facilities to users ( for example of tennis courts to
    scheme is alleged to have an adverse effect on trade                   tennis players ) come under the 'leasing or letting of
    between Member States . It confines itself to deducing                 immovable property' within the meaning of the tax
    from     the   abovementioned      statement     that  such            exemption in Article 13B ( b ) of the sixth Council
    undertakings are ' by definition' in competition with                  Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of the laws of the Member States
    the products of foreign undertakings,
                                                                           relating to turnover taxes — Common system of
                                                                           value-added tax: uniform basis of assessment (') ('the
— ( In the alternative ) Maribel II/III is compatible with                 sixth Directive')?
    the common market . The Maribel II/III scheme is
    intended to boost employment by the creation of less              2 . If question 1 is answered in the affirmative : is
    skilled jobs,                                                          'leasing or letting of immovable property excluding . . .
                                                                           lettings of permanently installed equipment' in
— ( In the alternative ) Breach of the principle of                        Article 13B ( b ) ( 3 ) of the sixth Directive to be
    proportionality                                                        interpreted as meaning that the liability to tax on
                                                                           lettings of equipment encompasses the letting of the
                                                                           surrounding building and immovable property, or is
    The recovery imposed is a disproportionate sanction in                 the hiring out of sports facilities to be split up into an
    relation to the infringement committed. In view of the                 exempt letting of immovable property and a taxable
    uncertainty as to the definition of a 'general measure',               letting of equipment ?
    it is difficult to regard the infringement as 'serious'.
    Nor is it clear from the contested decision what effect           (') OJ No L 145 , 13 . 6 . 1977, p . 1 .
    the measure has on trade between Member States . It is
    only in the enacting terms that the Commission
    requires the Belgian State to recover the aid, without,
    however, referring to the grounds on which it took the
    decision to do so .
                                                                      Action brought on 25 February 1997 by MD Foods Amba
    Breach of the principles of proportionality, sound                and Danske Mejeriers Fællesorganisation, acting on behalf
    administration and legal certainty, of the rights of the          of Kløvermælk Amba, Løgismose Produktion A/S,
    defence and of legitimate expectations: the                       Mejeriselskabet Vesthimmerland, Nordex Food A/S,
    Commission should have had recourse to less far­                  Sinai Landmejeri, c/o Gunnar Larsen, and Sædager
    reaching measures, such as already requesting, pending            Andelsmejeri against Commission of the European
    the procedure pursuant to Article 93 ( 2 ) of the EC                                            Communities
    Treaty, that payment of the ( continuing) aid be                                             ( Case C-81/97)
    deferred,
                                                                                                   ( 97/C 131/14 )
— ( In the alternative ) Absolute impossibility of recovery
    in view of the large number of undertakings                       On 25 February 1997, a case was referred to the Court of
    concerned .                                                       Justice of the European Communities which had been
                                                                      brought before the Court of First Instance by MD Foods
                                                                      Amba and Danske Mejeriers Faellesorganisation, acting on
                                                                      behalf of Klovermaslk Amba and Others. In the case,
                                                                      which had been given the number T- 13 9/96, the Court of
                                                                      First Instance issued a referral order and referred the case
                                                                      to the Court of Justice in order that the latter might rule
Reference for a preliminary ruling by the Finanzgericht               on the application for annulment.
Miinchen by order of that court of 5 December 1996 in
the case of Happy Sports Michl OHG against Finanzamt                  Pleas in law and main arguments adduced in support:
                             Landshut
                        ( Case C-79/97)                               The pleas in law and main arguments are the same as
                          ( 97/C 131/13 )                             those in Case T-139/96 , MD Foods Amba and Others v.
                                                                      Commission of the European Communities (*).
Reference has been made to the Court of Justice of the                 (') OJ No C 354 , 23 . 11 . 1996 , p . 28 .
European Communities by order of the Fourteenth
Chamber of the Finanzgericht Miinchen ( Finance Court,