CELEX: C1998/397/27
Language: en
Date: 1998-12-19 00:00:00
Title: Action brought on 14 October 1998 by the Commission of the European Communities against the Portuguese Republic (Case C-367/98)

C 397/16             EN                 Official Journal of the European Communities                                  19.12.98
Ioannou, Judges; F. G. Jacobs, Advocate-General; R.                aim is to defend the collective interests of its members Ð
Grass, Registrar, has given a judgment on 12 November              whether they are workers, employers, independent
1998, in which it:                                                 professionals or traders carrying on a particular economic
                                                                   activity Ð and to represent them vis-aÁ-vis the appropriate
                                                                   third parties, including the public authorities.
1. Dismisses the application;
                                                                   (1) OJ C 166, 31.5.1997.
2. Orders the Kingdom of Spain to pay the costs.
(1) OJ C 131, 26.4.1997.
                                                                   Action brought on 14 October 1998 by the Commission
                                                                   of the European Communities against the Portuguese
                                                                                              Republic
                                                                                          (Case C-367/98)
                                                                                            (98/C 397/27)
              JUDGMENT OF THE COURT
                       (Sixth Chamber)
                                                                   An action against the Portuguese Republic was brought
                    of 12 November 1998                            before the Court of Justice on 14 October 1998 by the
                                                                   Commission of the European Communities, represented
in Case C-149/97 (reference for a preliminary ruling from
                                                                   by António Caeiro, Principal Legal Adviser, acting as
the VAT and Duties Tribunal): Institute of the Motor
                                                                   Agent, with an address for service in Luxembourg at the
    Industry v. Commissioners of Customs and Excise (1)
                                                                   office of Carlos Gómez de la Cruz, also of its Legal
(VAT Ð Exemptions Ð Non-profit-making organisations                Service, Wagner Centre, Kirchberg.
             with aims of a trade-union nature)
                        (98/C 397/26)
                                                                   The applicant claims that the Court of Justice should:
               (Language of the case: English)                     Ð declare that, by enacting and maintaining in force Law
                                                                       No 11/90 of 5 April 1990, and in particular
                                                                       Article 13(3) thereof, the decree-laws privatising
                                                                       undertakings subsequently enacted in implementation
In Case C-149/97: reference to the Court under Article 177             thereof, and Decree-Law No 380/93 of 15 November
of the EC Treaty from the VAT and Duties Tribunal,                     1993 and Decree-Law No 65/94 of 28 February 1994,
London, for a preliminary ruling in the proceedings                    the Portuguese Republic has failed to fulfil its
pending before that court between Institute of the Motor               obligations under the EC Treaty, in particular
Industry and Commissioners of Customs and Excise Ð on                  Articles 52, 56, 58, 73 et seq. (which superseded
the interpretation of Article 13A(1)(l) of the Sixth Council           Article 67 et seq. of the EC Treaty) and Article 221,
Directive 77/388/EEC of 17 May 1977 on the                             and Articles 221 and 231 of the Act of Accession of
harmonisation of the laws of the Member States relating                the Portuguese Republic; (1)
to turnover taxes Ð Common system of value added tax:
uniform basis of assessment (OJ L 145, 13.6.1977, p. 1)
Ð the Court (Sixth Chamber), composed of: P. J. G.
Kapteyn (Rapporteur), President of the Chamber, G. F.              Ð order the Portuguese Republic to pay the costs.
Mancini, J. L. Murray, H. Ragnemalm and K. M.
Ioannou, Judges; G. Cosmas, Advocate-General; L.
Hewlett, Administrator, for the Registrar, has given a             Pleas in law and main arguments adduced in support:
judgment on 12 November 1998, in which it has ruled:
                                                                   Ð By providing that foreign capital holdings in privatised
For the purposes of Article 13A(1)(l) of the Sixth Council             undertakings may not exceed a specified percentage,
Directive 77/388/EEC of 17 May 1977 on the                             and including in that category holdings by Community
harmonisation of the laws of the Member States relating                investors, the Portuguese legislation discriminates
to turnover taxes Ð Common system of value added tax:                  between national citizens and entities and those of
uniform basis of assessment, an organisation with aims of              other Member States, thereby infringing Articles 52 et
a trade-union nature means an organisation whose main                  seq. and 73 et seq. of the EC Treaty.
 ---pagebreak--- 19.12.98              EN                 Official Journal of the European Communities                                    C 397/17
Ð The requirement of authorisation from the Ministry of                  competent institution or in accordance with that
    Finance for the transfer of shares representing more                 organised by the State on whose territory the hospital
    than 10 % of the voting capital of privatised                        treatment has taken place?
    companies (or of a specified participation in financial
    institutions), in the terms set out in Decree-Law
    No 380/93, is incompatible with Articles 73(b) and 52
    of the EC Treaty, the requirement of such                       Ð Is a limitation of the amount reimbursed under the
    authorisation could only be justified by imperative                  legislation of the State of the competent institution
    reasons in the general interest and if they were based               permitted, having regard to Article 36 of Regulation
    on objective criteria which are consistent and public in             (EEC) No 1408/71 which refers to reimbursement in
    character, in the absence of which that requirement                  full?
    could be used so as to keep control of the undertaking
    in question in the hands of nationals. The Portuguese
    authorities have not indicated what imperative reasons          (1) (OJ, English Special Edition 1971 (II), p. 416).
    in the general interest might justify such a measure. As
    regards the criteria which are to serve as guidance for
    the grant of authorisation, the Commission continues
    to hold the view that such criteria either are not
    indicated in the legislation or, in the event of Decree-
    Law No 380/93 referring to Decree-Law No 11/90,
    the prescribed criteria may be interpreted and applied
    in such a way as to benefit Portuguese citizens, to the         Reference for a preliminary ruling by the Divisional
    detriment of the nationals of other Member States.              Court, Queen's Bench Division, by order of that court of
                                                                    13 March 1998, in the case of The Queen against
(1) OJ L 302, 15.11.1985.                                           Minister of Agriculture, Fisheries and Food, ex parte:
                                                                    Trevor Robert Fisher and Penny Fisher trading as T. R.
                                                                                          and P. Fisher (a firm)
                                                                                             (Case C-369/98)
                                                                                              (98/C 397/29)
Reference for a preliminary ruling from the Cour du
Travail, Mons, by judgment of that court of 9 October
1998 in the case of Abdon Vanbraekel, Marie-Ange
                                                                    Reference has been made to the Court of Justice of the
Vanbraekel,      Marie-Paule    Vanbraekel,     Marie-Claire
                                                                    European Communities by an order of the Divisional
Vanbraekel, Brigitte Vanbraekel, Edith Vanbraekel and
                                                                    Court, Queen's Bench Division, of 13 March 1998, which
Alexandre Vanbraekel v. Alliance Nationale des
                                                                    was received at the Court Registry on 16 October 1998,
                   MutualiteÂs ChreÂtiennes
                                                                    for a preliminary ruling in the case of The Queen against
                       (Case C-368/98)                              Minister of Agriculture, Fisheries and Food, ex parte:
                                                                    Trevor Robert Fisher and Penny Fisher trading as T. R.
                        (98/C 397/28)
                                                                    and P. Fisher (a firm), on the following questions:
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Sixth                     (1) (i) Do Articles 3(1) and 9 of Regulation (EEC)
Chamber of the Cour du Travail (Higher Labour Court),                          No 3508/92 (1), coupled with the general
Mons, of 9 October 1998, which was received at the                             principles of Community law, permit information
Court Registry on 16 October 1998, for a preliminary                           held on a computerised data base set up under
ruling in the case of Abdon Vanbraekel, Marie-Ange                             Article 2, relating to data supplied by or on
Vanbraekel, Marie Paule Vanbraekel, Marie-Claire                               behalf of a former claimant for payments under
Vanbraekel, Brigitte Vanbraekel, Edith Vanbraekel and                          AAPs, to be disclosed to third parties?
Alexandre Vanbraekel v. Alliance Nationale des
MutualiteÂs ChreÂtiennes on the following questions:
                                                                          (ii) If the answer to question 1(i) is yes', is the
Where, in the context of proceedings before it, a national                     disclosure which the competent authority is
court has acknowledged that hospital treatment in a                            lawfully required to provide limited, as regards
Member State other than that of the competent institution                      the persons to whom disclosure can be made:
was necessary, although the prior authorisation provided
for in Article 22 of Regulation (EEC) No 1408/71 (1) was                       (a) to persons authorised by the former claimant
refused:                                                                            on the UK Base Form; and/or
Ð Must the costs of hospital treatment be reimbursed                           (b) to persons who require the information
    in accordance with the scheme of the State of the                               in connection with their application for