CELEX: C2002/056/07
Language: en
Date: 2002-03-02 00:00:00
Title: Case C-463/01: Action brought on 3 December 2001 by the Commission of the European Communities against the Federal Republic of Germany

2.3.2002                EN                     Official Journal of the European Communities                                          C 56/3
(the Greek State), (2) Organismos Ikonomikis Anasigkrotisis                     have conferred on taxable persons a right to opt for
Epikhirision AE, legally represented by the liquidator, Ethniki                 taxation? Which of the transactions listed in
Kefalaiou Anonimi Etairia Diakhirisis Energitikou kai Pathiti-                  Article 13B(d) of Directive 77/388/EEC are involved?
kou, (3) Athinaiki Khartopiia AE, and (4) Georgios I. Tsamasfi-
ros and Others on the following question:
                                                                          (1) OJ L 145, p. 1.
In view of the fact that Article 25 of the Second Council
Directive 77/91/EEC (1) of 13 December 1976 does not lay
down a penalty for any infringement of that article, is it
compatible with the objectives pursued by that directive for a
provision of national law to declare valid shares which have
                                                                          Reference for a preliminary ruling, by order of the
resulted from an increase, pursuant to ministerial decisions, in
                                                                          Bundesfinanzhof of 27 September 2001 in the case of
the share capital of public limited companies where the
                                                                          KapHag Renditefonds, 35 Spreecenter Berlin-Hellersdorf,
increase is invalid as contrary to Article 25 of the directive,
                                                                               3. Tranche GbR against Finanzamt Charlottenburg
provided that the provision confers, in return, a right against
the State to full compensation for any harm which the pre-
existing shareholders of those public limited companies have                                       (Case C-442/01)
suffered as a consequence of the increase. In particular, may
that right to full compensation be regarded, in view inter alia                                     (2002/C 56/06)
of the long time which has since passed and the successive
increases which have followed (by decisions of the general
meeting), as equivalent, under Community law, to recognition              Reference has been made to the Court of Justice of the
that the shares which have resulted from the invalid increase             European Communities by order of the Bundesfinanzhof
in the share capital are invalid?                                         (Federal Finance Court) of 27 September 2001, which was
                                                                          received at the Court Registry on 16 November 2001, for a
                                                                          preliminary ruling in the case of KapHag Renditefonds,
(1) OJ L 26 of 31.1.1977, p. 1.                                           35 Spreecenter Berlin-Hellersdorf, 3. Tranche GbR v Finanzamt
                                                                          Charlottenburg on the following questions:
                                                                          1.    Where a partnership assumes a partner on payment of a
                                                                                capital contribution in cash, does it effect a supply to him
                                                                                for consideration within the meaning of Article 2(1) of
                                                                                Directive 77/388/EEC? (1)
                                                                          2.    If so, is it an incidental transaction for the purposes of
Reference for a preliminary ruling by the Bundesfinanz-                         Article 19(2), sentence 2, of Directive 77/388/EEC, and is
hof by order of that court of 17 May 2001 in the case                           the taxable person entitled to rely on Article 19(2),
of Finanzamt Groß-Gerau against MKG-Kraftfahrzeuge-                             sentence 2, of Directive 77/388/EEC, according to which
                         Factoring GmbH                                         such incidental transactions do not exclude a deduction?
                          (Case C-305/01)                                 (1) OJ L 145, p. 1.
                           (2002/C 56/05)
                                                                          Action brought on 3 December 2001 by the Commission
Reference has been made to the Court of Justice of the                    of the European Communities against the Federal Repub-
European Communities by order of the Bundesfinanzhof                                                lic of Germany
(Federal Finance Court) of 17 May 2001, received at the Court
Registry on 3 August 2001, for a preliminary ruling in                                             (Case C-463/01)
the case of Finanzamt Groß-Gerau v MKG-Kraftfahrzeuge-
Factoring GmbH on the following questions:                                                          (2002/C 56/07)
1.    Can a factoring company which buys debts and assumes
      liability for the risk of loss in relation to those debts be        An action against the Federal Republic of Germany was
      said to be using goods and services received by it for the          brought before the Court of Justice of the European Communi-
      purposes of its transactions?                                       ties on 3 December 2001 by the Commission of the European
                                                                          Communities, represented by Götz zur Hausen, Legal Adviser
2.    Do such activities involve taxable transactions or trans-           in the Commission of the European Communities, with an
      actions (they involve the latter in any event) for the              address for service in Luxembourg at the office of Luis Escobar
      purposes of Article 13B(d) of Directive 77/388/EEC (1)              Guerrero, of the Commission’s Legal Service, Wagner Centre,
      which may be taxed to the extent that the Member States             Kirchberg.
 ---pagebreak--- C 56/4                 EN                   Official Journal of the European Communities                                       2.3.2002
The applicant claims that the Court should:                            The argument that the measures in issue serve environmental
                                                                       purposes is not enough to justify them, since they are
                                                                       disproportionate. This is because, where the journey to be
                                                                       travelled is greater than a certain distance, the burden imposed
(1) declare that, by introducing, by means of Paragraphs 8(1)
                                                                       on the environment outweighs the ecological advantages
       and 9(2) of the Verpackungsverordnung 1998, a system
                                                                       connected with the use of refillable containers. For the
       for the re-use of packaging for products which are
                                                                       purposes of the present proceedings, it is immaterial what
       required, under Directive 80/777/EEC, to be bottled at
                                                                       distance actually represents that threshold in respect of mineral
       source, the Federal Republic of Germany has infringed its
                                                                       water, since the German rules apply, quite irrespective of any
       obligations under Article 5 of European Parliament and
                                                                       transportation distance, to all mineral waters to be bottled at
       Council Directive 94/62/EC (1) of 20 December 1994 on
                                                                       source, and thus also cover cases in which that distance is
       packaging and packaging waste, in conjunction with
                                                                       considerable.
       Article 28 EC, and Article 3 in conjunction with point
       2(d) of Annex II to Council Directive 80/777/EEC (2) of
       15 July 1980 on the approximation of the laws of the
       Member States relating to the exploitation and marketing        (1) OJ L 365, 31.12.1994, p. 10.
       of natural mineral waters;                                      (2) OJ L 229, 30.8.1980, p. 1.
(2) order the Federal Republic of Germany to pay the costs.
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Oberster
                                                                       Gerichthof by order of 8 November 2001 in the case of
                                                                            Johann Gruber against Bay Wa Aktiengesellschaft
The rules laid down in Paragraphs 8(1) and 9(2) of the                                         (Case C-464/01)
Verpackungsverordnung (Packaging Order) 1998 are incom-
patible, as regards natural mineral waters to be bottled at
source, with Article 5 of the packaging directive and Article 28
                                                                                                (2002/C 56/08)
EC, since they result in an impairment of trade which cannot
be justified on grounds of environmental protection. The
interaction of the German legislation is such that it is in the
interests of producers of mineral waters in other Member
States who wish to market their products in Germany to use
refillable containers if they wish to avoid the obligation to          Reference has been made to the Court of Justice of the
collect a deposit in respect of the packaging distributed by           European Communities by order of the Oberste Gerichtshof
them and to retain the possibility of participating in general         (Supreme court of Austria) of 8 November 2001, which was
return systems. Although that legislation undeniably favours           received at the Court Registry on 4 December 2001, for a
the use of refillable containers rather than non-reusable ones,        preliminary ruling in the case of Johann Gruber against Bay
national measures to promote the use of refillable containers          Wa Aktiengesellschaft, on the following questions:
are only in accordance with Article 5 of Directive 94/62/EC if,
at the same time, they meet the requirements of Article 28 EC.
The German rules in the present case, however, constitute a            1.    Where the purposes of a contract are partly private, does
measure the effect of which is equivalent to a quantitative                  the status of ‘consumer’ for the purposes of Article 13 of
restriction within the meaning of Article 28 EC. The German                  the Convention depend on which of the private and the
measures operate to make the distribution of natural mineral                 trade or professional purposes is predominant, and what
waters from other Member States more difficult and/or more                   criteria are to be applied in determining which of the
expensive. It is true that German producers must also, as the                private and the trade or professional purposes predomi-
case may be, transport empty refillable containers over long                 nates?
distances; but, where bottling takes place outside Germany,
the distance between the bottling plant and the place of               2.    Does the determination of the purpose depend solely on
consumption in Germany is in most cases significantly greater                the circumstances which could be objectively ascertained
than when bottling and consumption both take place within                    by the other party to the contract with the consumer?
Germany. The possibility, for foreign mineral water producers,
of participating in a system of standardised re-usable packaging
would result in additional conversion costs for those producers        3.    In case of doubt, is a contract which may be attributed
whilst, at best, reducing the need for the return transportation             both to private and to trade or professional activity to be
of empty refillable containers.                                              regarded as a consumer contract?