CELEX: C2003/044/31
Language: en
Date: 2003-02-22 00:00:00
Title: Case C-472/02: Reference for a preliminary ruling by the Cour d'appel de Bruxelles by judgment of that Court of 20 December 2002 in the case of Siomab against Institut Bruxellois pour la Gestion de l'Environnement ("IBGE")

22.2.2003                EN                        Official Journal of the European Union                                        C 44/17
The applicant claims that the Court should:                                Reference for a preliminary ruling by the Cour d’appel de
                                                                           Bruxelles by judgment of that Court of 20 December
                                                                           2002 in the case of Siomab against Institut Bruxellois
—     Declare that by making the granting and payment of a                        pour la Gestion de l’Environnement (‘IBGE’)
      benefit under the career-break benefit scheme subject to
      the condition that the person concerned is habitually
      resident in Belgium, the Kingdom of Belgium has failed
      to fulfil its duties under Article 39 of the EC Treaty,
      Article 7 of Regulation (EEC) No 1612/68 of the Council                                       (Case C-472/02)
      of 15 October 1968 on freedom of movement for
      workers within the Community ( 1), and specifically, so far
      as concerns career breaks in the context of parental leave,
      Article 73 of Council Regulation No 1408/71 of 14 June                                         (2003/C 44/31)
      1971 on the application of social security schemes to
      employed persons and their families moving within the
      Community (2);
—     Order the Kingdom of Belgium to pay the costs.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Cour d’appel de
Pleas in law and main arguments                                            Bruxelles (Court of Appeal, Brussels) of 20 December 2002,
                                                                           received at the Court Registry on 27 December 2002, for a
                                                                           preliminary ruling in the case of Siomab against Institut
                                                                           Bruxellois pour la Gestion de l’Environnement (‘IBGE’) on the
(The residence clause) The Belgian authorities announced the               following questions:
removal of the clause relating to residence acknowledging
thereby that the Commission’s arguments were well founded.
However, work on compliance has not been completed.
                                                                           Where a Member State has recourse to the mechanism by
(The clauses relating to payment in Belgium) The requirement               which the competent authority of dispatch gives notice of a
that the persons affected by the benefit should have a bank                consignment note under Articles 3(8) and 6(8) of Council
account in Belgium is, in certain cases, such as to call in                Regulation No 259/93 of 1 February 1993 on the supervision
question the effects of the amendments to the legislation at               and control of shipments of waste within, into and out of the
issue. Indeed, there are instances where, in order to open a               European Community (1), must Articles 3(8), 4(3), 6(8), 7(4)
bank account or to maintain it, certain banks require a                    and 26 of the regulation be interpreted as meaning:
certificate of residence.
                                                                           (a)  that the competent authority of dispatch within the
(Procedure for dealing with previous refusals) It is essential, for             meaning of the regulation, which is empowered to verify
the purpose of legal certainty, that the real rights of the                     whether a planned shipment classified in the notification
individual are protected from the harmful consequences of                       as a ‘shipment of waste for recovery’ actually fits that
conduct by the public authorities which is based on rules                       classification, may, when it considers that the classifi-
which are incompatible with Community law. Failure of a                         cation is incorrect,
Member State to fulfil its obligations should not, in any event,
result in a financial advantage for itself. However, although the
Belgian authorities state that anyone whose career-break                        (1) refuse to transmit the consignment note because of
benefit was refused on the basis of the former rules may make                         that incorrect classification and ask the notifier to
a fresh application on the basis of the new rules, the cases                          transmit a new consignment note to it,
concerned will be routinely re-examined; neither is there any
information as to the dissemination of information or on the
procedures which will be put in place for back-payment of the
benefits to persons who have been denied them on the ground                     (2) transmit the consignment note after reclassifying
that they were not resident in Belgium.                                               the planned shipment as a ‘shipment of waste for
                                                                                      disposal’,
( 1) OJ, English Special Edition 1968 (II), p 475.
( 2) OJ, English Special Edition 1972 (I), p 159.                               (3) transmit the consignment note containing the incor-
                                                                                      rect classification, immediately accompanying its
                                                                                      transmission with an objection based on that incor-
                                                                                      rect classification?
 ---pagebreak--- C 44/18                 EN                       Official Journal of the European Union                                          22.2.2003
(b)   or, on the contrary, that the competent authority of               Or, must it be considered that the legal definition of waste
      dispatch is required to send the notification as classified        within the meaning of the abovementioned provisions applies
      by the notifier to the competent authority of destination,         only if the polluted earth has been excavated?
      while retaining the power, if it considers that the purpose
      of the shipment has been incorrectly classified, also to
                                                                         (1 ) OJ L 194 of 25.7.1975, p. 39.
      raise a reasoned objection on the basis of that erroneous          (2 ) OJ L 78 of 26.3.1991, p. 32.
      classification, at the same time or subsequently?
( 1) OJ L 30 of 6.2.1993, p. 1.
                                                                         Reference for a preliminary ruling by the Tribunal de
                                                                         Première Instance de Bruxelles by order of that Court of
                                                                         24 December 2002 in the case of Banque Bruxelles
                                                                         Lambert S.A. (‘BBL’) against the Belgian State, Minister of
                                                                         Finance, Department of administration of value added
                                                                                      tax, registration and public property
                                                                                                    (Case C-8/03)
Reference for a preliminary ruling by the Cour d’Appel                                             (2003/C 44/33)
de Bruxelles, 11e Chambre, by judgment of that Court of
3 December 2002 in the case of Ministère public and the
civil party: La Région de Bruxelles-Capitale against 1. Paul             Reference has been made to the Court of Justice of the
Van de Walle, 2. Daniel Laurent, 3. Thierry Mersch and                   European Communities by order of the Tribunal de Première
            the civil defendant: SA Texaco Belgium                       Instance de Bruxelles (Regional Court, Brussels) of 24 Decem-
                                                                         ber 2002, received at the Court Registry on 10 January 2003,
                                                                         for a preliminary ruling in the case of Banque Bruxelles
                            (Case C-1/03)                                Lambert S.A. (‘BBL’) against the Belgian State, Minister of
                                                                         Finance, Department of administration of value added tax,
                                                                         registration and public property, on the following questions:
                           (2003/C 44/32)
                                                                         Are Sociétés d’investissement à capital variable [open-end
                                                                         investment companies] (SICAVs) established in a Member State
                                                                         which have as their sole object the collective investment in
Reference has been made to the Court of Justice of the                   transferable securities of capital raised from the public in
European Communities by judgment of the Cour d’Appel de                  accordance with Council Directive 85/611/EEC of 20 Decem-
Bruxelles, 11e Chambre, (The Court of Appeal, Brussels,                  ber 1985 on the coordination of laws, regulations and
11th Chamber) of 3 December 2002, received at the Court                  administrative provisions relating to undertakings for collec-
Registry on 3 January 2003, for a preliminary ruling in the              tive investment in transferable securities (UCITS) (1), taxable
case of Ministère public and the civil party: La Région de               persons for value-added-tax purposes within the meaning of
Bruxelles-Capitale against 1. Paul Van de Walle, 2. Daniel               Article 4 of the Sixth Council Directive 77/388/EEC of 17 May
Laurent, 3. Thierry Mersch and the civil defendant: SA Texaco            1977 on the harmonization of the laws of the Member States
Belgium on the following questions:                                      relating to turnover taxes — Common system of value added
                                                                         tax: uniform basis of assessment (2), so that the services referred
                                                                         to in Article 9(2)(e) of that directive supplied to them are
                                                                         deemed to be provided at the place where the said SICAVs
Are Article 1(a) of Council Directive 75/442/EEC of 15 July              have established their seat?
1975 (1) on waste, as amended by Directive 91/156/EEC of
18 March 1991 ( 2), which defines waste as meaning ‘any
substance or object which the holder disposes of or is required          If the answer to that question is in the negative, the resolution
to dispose of pursuant to the provisions of national law in              of the case entails determining what types of services provided
force’, and Article 1(b) and (c) of that directive which define          to the SICAVs may benefit from the exemption under
‘producer of waste’ as ‘anyone whose activities produce waste            Article 13B(d)(6) of the Sixth Directive: Is it necessary in this
(“original producer”) and/or anyone who carries out pre-                 context to distinguish between services which comprise the
processing, mixing or other operations resulting in a change             giving of assistance and management advice, on the one hand,
in the nature or composition of this waste’, and ‘holder’ as ‘the        and management services in the strict sense, on the other, the
producer of the waste or the natural or legal person who is in           latter being said to differ from the former in that they imply a
possession of it’, to be interpreted as being capable of applying        power on the manager’s part to take decisions relating to the
to a petroleum company which produces hydrocarbons and                   administration and disposal of the assets under management?
sells them to a manager operating one of its service stations
under a contract of independent management excluding                     (1 ) OJ L 375 of 31.12.1985, p. 3.
any relationship of subordination to that company, if such               (2 ) OJ L 145 of 13.6.1977, p. 1.
hydrocarbons percolate into the ground, thus causing pol-
lution of the earth and subterranean waters?