CELEX: C2004/021/45
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-498/03: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by order of that court dated 10 June 2003, in the case of 1) Kingscrest Associates Ltd, 2) Montecello Ltd (trading together as Kingscrest Residential Care Homes) against Commissioners of Customs and Excise

C 21/24                  EN                        Official Journal of the European Union                                       24.1.2004
The Commission of the European Communities claims that                     Pleas in law and main arguments
the Court should:
1.    Declare that, by failing to adopt and the laws, regulations
                                                                           The prohibition on the sale of food supplements by mail order,
      and administrative provisions necessary to comply with
                                                                           laid down in Paragraph 50(2) of the Gewerbeordnung, is a
      Commission Directive 2001/59/EC of 6 August 2001
                                                                           measure having equivalent effect to a quantitative restriction
      adapting to technical progress for the 28th time Council
                                                                           on imports. It constitutes a greater obstacle to the sale of
      Directive 67/548/EEC on the approximation of the laws,
                                                                           products from other Member States than to that of domestic
      regulations and administrative provisions relating to
                                                                           products. Such a prohibition on sales by mail order makes it
      the classification, packaging and labelling of dangerous
                                                                           necessary for traders from other Member States to establish a
      substances (1) and, in any event, by not communicating
                                                                           place of business in Austria or attract sales partners there
      them to the Commission, the French Republic has failed
                                                                           whereas Austrian traders in any case already have a fixed place
      to fulfil its obligations under that directive; and
                                                                           of business in Austria, which can be advantageous to them in
                                                                           marketing the food supplements manufactured by them.
2.    Order the French Republic to pay the costs.                          Austrian traders have the advantage of being able to use areas
                                                                           of the manufacturing premises or the premises on which their
                                                                           place of business is situated as a sales outlet also. This
                                                                           may represent a considerable cost advantage over foreign
                                                                           manufacturers as a result of the expenditure saved.
Pleas in law and main arguments
The time-limit for transposition of the directive expired on               The aims of the protection of consumers against health risks
30 July 2002.                                                              and misrepresentation, which are put forward in order to
                                                                           justify such a prohibition, may be achieved by more lenient
                                                                           means which restrict the free movement of goods to a lesser
(1) OJ L 225 of 21 August 2001, p. 1.                                      degree. The Austrian measure is thus a disproportionate
                                                                           restriction on the free movement of goods.
Action brought on 24 November 2003 by the Com-
mission of the European Communities against the Repub-
                             lic of Austria
                                                                           Reference for a preliminary ruling by the VAT and Duties
                                                                           Tribunals, London Tribunal Centre, by order of that court
                           (Case C-497/03)                                 dated 10 June 2003, in the case of 1) Kingscrest Associates
                                                                           Ltd, 2) Montecello Ltd (trading together as Kingscrest
                                                                           Residential Care Homes) against Commissioners of Cus-
                            (2004/C 21/44)                                                         toms and Excise
                                                                                                   (Case C-498/03)
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 November 2003 by the Commission of the European                                                  (2004/C 21/45)
Communities, represented by J. C. Schieferer and B. Schima,
with an address for service in Luxembourg.
The applicant claims that the Court should:
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by an order of the VAT and Duties
1.    hold that, by imposing in Paragraph 50(2) of the Gewer-              Tribunals, London Tribunal Centre, dated 10 June 2003, which
      beordnung a prohibition on the sale of food supplements              was received at the Court Registry on 26 November 2003, for
      by mail order, the Republic of Austria has failed to fulfil          a preliminary ruling in the case of 1) Kingscrest Associates Ltd,
      its obligations under Article 28 EC;                                 2) Montecello Ltd (trading together as Kingscrest Residential
                                                                           Care Homes) and Commissioners of Customs and Excise on
2.    order the Republic of Austria to pay the costs.                      the following questions:
 ---pagebreak--- 24.1.2004               EN                       Official Journal of the European Union                                          C 21/25
1.    Is it permissible to resort to other language versions of          The appellant claims that the Court should:
      the Sixth Council Directive 77/388/EEC (1) to elucidate
      the meaning of the word ‘charitable’ in Article 13A.1 (g)          —     set aside the contested judgment of the Court of First
      and (h), or must the word have the same meaning as in                    Instance of 17 September 2003 (1) and
      domestic law?
                                                                         —     1.    in Case T-309/01,
2.    If article 13A(1)(g) and (h) are to be interpreted as                          annul the Commission Decision of 14 August 2001
      applying to an organisation that is recognised as having                       (REC 4/00) in so far as it requires subsequent
      a social character, are they to be interpreted as applying                     accounting for import duties in the amount of
      to a profitmaking entity such as the Kingscrest Residential                    DEM 218 605,65, and order the Commission to pay
      Care Homes partnership?                                                        the costs of the proceedings;
3.    Are article 13A.1 (g) and (h) of the Directive to be                     2.    in Case T-239/02,
      interpreted as meaning that they confer on Member States
      a discretion to recognise for the purposes of those                            annul the Commission Decision of 5 March 2002
      provisions an organisation which is registered under the                       (REC 4/01) in so far as it requires subsequent
      Care Standards Act 2000 (or the Registered Homes Act                           accounting for import duties in the amount of
      1984 or the Children Act 1989) but which is not a body                         DEM 222 116,06, and order the Commission to pay
      governed by public law and does not have the status of a                       the costs of the proceedings.
      charity under the domestic law of the Member State
      concerned?
                                                                         Pleas in law and main arguments
(1) Of 17 May 1977 on the harmonization of the laws of the Member        The appellants contest the judgment of the Court of First
    States relating to turnover taxes — Common system of value           Instance on the following grounds:
    added tax: uniform basis of assessment (OJ L 145 of 13.6.77,
    p. 1).
                                                                         —     Breach of Article 220(2)(b) of Council Regulation (EEC)
                                                                               No 2913/92 (2). The Court of First Instance incorrectly
                                                                               based its ruling on a finding that the error made by the
                                                                               competent customs authority was detectable by the
                                                                               appellants. In the contested judgment, the Court of First
                                                                               Instance exaggerated the duty of care to be expected of
                                                                               the economic operators concerned. In addition, it failed
                                                                               to appreciate the complexity of the applicable rules.
Appeal brought on 26 November 2003 (fax: 25 November
2003) by Peter Biegi Nahrungsmittel GmbH and Com-                        —     Flawed procedure in so far as the Court of First Instance
monfood Handelsgesellschaft für Agrar-Produkte mbH                             incorrectly declined to hear the witnesses named by the
against the judgment delivered on 17 September 2003 by                         appellants. Instead, it based its judgment on assumptions
the Fourth Chamber of the Court of First Instance of the                       detrimental to the appellants.
European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
                                                                         (1) Not yet published in the ECR.
Commonfood Handelsgesellschaft für Agrar-Produkte
                                                                         (2) OJ L 302, p. 1.
mbH, and the Commission of the European Communities
                         (Case C-499/03 P)
                           (2004/C 21/46)
                                                                         Action brought on 26 November 2003 by the Com-
                                                                         mission of the European Communities against the Portu-
                                                                                                   guese Republic
An appeal against the judgment delivered on 17 September
2003 by the Fourth Chamber of the Court of First Instance of                                       (Case C-500/03)
the European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and                                                (2004/C 21/47)
Commonfood Handelsgesellschaft für Agrar-Produkte mbH,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 26 November 2003 (fax: 25 November 2003) by Peter                An action against the Portuguese Republic was brought
Biegi Nahrungsmittel GmbH and Commonfood Handelsge-                      before the Court of Justice of the European Communities on
sellschaft für Agrar-Produkte mbH, represented by Dr Klaus               26 November 2003 by the Commission of the European
Landry and Dr Lothar Harings of Sozietät Graf von Westphalen             Communities, represented by António Caeiros, acting as
Bappert & Modest, Große Bleichen 21, D-20354, Hamburg.                   Agent, with an address for service in Luxembourg.