CELEX: C2001/118/23
Language: en
Date: 2001-04-21 00:00:00
Title: Case C-77/01: Reference for a preliminary ruling by the Tribunal Central Administrativo, 2a Secção by judgment of that court of 19 December 2000 in the case of EDM — Empresa de Desenvolvimento Mineiro, SA, against Fazenda Pública

C 118/14               EN                     Official Journal of the European Communities                                    21.4.2001
      (a)  to refer to physiological or pharmacological effects,         Pleas in law and main arguments
           in particular those which preserve youthfulness,
           inhibit signs of ageing, promote slimming or main-
           tain health, or to create the impression of any such          The Commission takes the view that the Grand Duchy of
           effect;                                                       Luxembourg has not adopted the necessary measures to
                                                                         implement the provisions set out in its application and that
                                                                         the existing provisions relied on do not constitute full and
      (b) to refer to case-histories, recommendations made by
                                                                         correct transposition.
           doctors or medical experts’ reports;
      (c)  to use health-related, pictorial or stylised represen-
                                                                         (1) OJ 1992 L 206, p. 2.
           tations of organs of the human body, pictures
           of members of the health-care professions or of
           sanatoria or other pictures or illustrations referring
           to health-care activities?
2.    Do Directive 79/112/EEC or Articles 28 and 30 EC
      preclude a national provision which, on the marketing of
      foodstuffs, permits health-related information such as
      that described in Question 1 to be affixed thereto
      only after prior authorisation by the competent federal
      minister, whereby a condition of authorisation is that the         Reference for a preliminary ruling by the Tribunal Central
      health-related information be consistent with protecting           Administrativo, 2a Secção by judgment of that court of
      the consumer from being misled?                                    19 December 2000 in the case of EDM — Empresa de
                                                                           Desenvolvimento Mineiro, SA, against Fazenda Pública
                                                                                                   (Case C-77/01)
                                                                                                  (2001/C 118/23)
Action brought on 14 February 2001 by Commission of                      Reference has been made to the Court of Justice of the
the European Communities against Grand Duchy of                          European Communities by judgment of the Tribunal Central
                           Luxembourg                                    Administrativo, 2a Secção (Second Chamber of the Central
                                                                         Administrative Court) of 19 December 2000, which was
                                                                         received at the Court Registry on 15 February 2001, for a
                          (Case C-75/01)                                 preliminary ruling in the case of EDM — Empresa de
                                                                         Desenvolvimento Mineiro, SA, against Fazenda Pública on the
                         (2001/C 118/22)                                 following questions:
An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-             Question 1
ties on 14 February 2001 by the Commission of the European
Communities, represented by R.B. Wainwright and J. Adda,
acting as Agents, with an address for service in Luxembourg.             Does the granting of annually repaid loans by a holding
                                                                         company to its partners constitute ‘economic activity’, within
                                                                         the meaning of Article 4(2) of the Sixth Directive (1), where
The applicant claims that the Court should                               that company’s principle activity is to manage those partners
                                                                         and, to a certain extent, also guarantee the loans contracted by
—     Declare that, by failing to bring into force all the measures      them?
      necessary to implement fully and correctly Articles 1,
      4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b)
      and 13(2), 14, 15, 16(1), 22(b) and (c), and 23(2) in
                                                                         Question 2
      conjunction with annexes I, II, IV, V and VI, of Council
      Directive 92/43/EEC of 21 May 1992 on the conservation
      of natural habitats and of wild fauna and flora (1), the           Likewise: the performance of operations, in the context of a
      Grand-Duchy of Luxembourg has failed to fulfil its                 consortium as in the present case, by a company which is both
      obligations under that directive and the third paragraph           a member and the administrator of the consortium, particularly
      of Article 249 of the EC Treaty; and                               where they exceed its share as stipulated in the contract, in
                                                                         return for payment in consideration of its value by the other
—     Order the Grand Duchy of Luxembourg to pay the costs.              members of the consortium?
 ---pagebreak--- 21.4.2001               EN                     Official Journal of the European Communities                                       C 118/15
Question 3                                                                      (aa) In such a case does the one-year time-limit in the first
                                                                                      subparagraph of Article 454(3) and Article 455(1) of
                                                                                      Regulation No 2454/93 in conjunction with the
Is the financial activity of a company whose annual revenue is                        first sentence of Article 11(1) of the TIR Convention
far higher than that produced by the activity which is its                            or the two-year time-limit in Article 455(2) of that
principal object, according to its statutes, to be regarded as                        regulation in conjunction with the first sentence of
‘incidental’ for the purposes of Article 19(2) of the Sixth                           Article 11(2) of the TIR Convention apply?
Directive?
                                                                                (bb) Does the time-limit for furnishing proof in the case
                                                                                      set out in Question 1(a) apply in such a way that the
                                                                                      guaranteeing association must submit its allegation
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                                      under tender of evidence that the irregularity was
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform                        actually committed in another Member State within
    basis of assessment (OJ 1977 L 145, p. 1).                                        the time-limit and, if that is not done, is precluded
                                                                                      from offering that proof?
                                                                          2.(a) Under Articles 454 and 455 of Regulation No 2454/93,
                                                                                is the Member State which finds that an irregularity has
                                                                                been committed in connection with a transport operation
                                                                                under cover of a TIR carnet obliged as against the
                                                                                guaranteeing association, in addition to the notifications
                                                                                under Article 455(1) of that regulation and an enquiry to
                                                                                the customs office of destination, to investigate where the
                                                                                irregularity was actually committed and who is the
Reference for a preliminary ruling from the Bundesge-                           customs debtor within the meaning of Article 203(3) of
richtshof by order of that court of 11 January 2001 in the                      Regulation No 2913/92, by requesting another Member
case of Bundesverband Güterkraftverkehr und Logistik                            State for administrative assistance in ascertaining the facts
(BGL) e.V., intervener: Préservatrice Foncière Tiard,                           (see Council Regulation (EEC) No 1468/81 of 19 May
Société anonyme d’assurances de droit français, v Federal                       1981 (3))?
Republic of Germany, represented by Hauptzollamt Frie-
                            drichshafen                                   (b) If the answer to Question 2(a) is in the affirmative,
                                                                                (aa) If such an investigative obligation is infringed, is the
                          (Case C-78/01)                                              irregularity not deemed under the first subparagraph
                                                                                      of Article 454(3) of Regulation No 2454/93 to have
                                                                                      been committed in the Member State in which it
                         (2001/C 118/24)                                              was detected?
                                                                                (bb) Must the Member State which has detected the
Reference has been made to the Court of Justice of the                                irregularity, when claiming against the guaranteeing
European Communities by an order of the Bundesgerichtshof                             association, demonstrate and prove that such an
(Federal Court of Justice) of 11 January 2001, which was                              investigative obligation has been complied with?
received at the Court Registry on 15 February 2001, for a
preliminary ruling in the case of Bundesverband Güterkraftver-            (1) OJ L 253, 11.10.1993, p. 1.
kehr und Logistik (BGL) e.V., intervener: Préservatrice Foncière          (2) OJ L 302, 19.10.1992, p. 1.
Tiard, Société anonyme d’assurances de droit français, v                  (3) OJ L 144, 2.6.1981, p. 1.
Federal Republic of Germany, represented by Hauptzollamt
Friedrichshafen on the following questions:
1.(a) Does the time-limit laid down in the first subparagraph
      of Article 454(3) of Commission Regulation (EEC)
      No 2454/93 of 2 July 1993 (1), implementing Council                 Appeal brought on 17 February 2001 by Aéroports de
      Regulation (EEC) No 2913/92 of 12 October 1992                      Paris against the judgment delivered on 12 December
      establishing the Community Customs Code (2), for fur-               2000 by the Third Chamber of the Court of First Instance
      nishing proof of the actual place of an irregularity apply          of the European Communities in Case T-128/98 between
      also where a Member State, pursuant to Article 454(2)               Aéroports de Paris and the Commission of the European
      and the first and second subparagraphs of Article 454(3)                 Communities, supported by Alpha Flight Services
      of Regulation No 2454/93, brings proceedings against
      the guaranteeing association for the payment of duties,                                       (Case C-82/01 P)
      and the association wishes to prove in those proceedings
      that the place where the irregularity was actually commit-                                    (2001/C 118/25)
      ted is situated in another Member State?
                                                                          An appeal against the judgment delivered on 12 December
(b) If the answer to Question 1(a) is in the affirmative:                 2000 by the Third Chamber of the Court of First Instance