CELEX: C2003/304/21
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-432/03: Action brought on 10 October 2003 by Commission of the European Communities against Portuguese Republic

C 304/14                EN                       Official Journal of the European Union                                       13.12.2003
Action brought on 30 September 2003 by the Italian                            made by the Member State as final beneficiary subject to
Republic against the Commission of the European Com-                          the only requirement that the expenditure should be in
                             munities                                         fact incurred by the final beneficiary itself.
                                                                         (b) Inadequate and contradictory statement of reasons.
                          (Case C-431/03)
                                                                         (1) OJ 1999 L 161, p. 1.
                          (2003/C 304/20)                                (2) OJ 2000 L 193, p. 39.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 September 2003 by the Italian Republic
represented by Ivo Maria Braguglia, acting as Agent, and
Antonio Cingolo, Avvocato dello Stato.                                   Action brought on 10 October 2003 by Commission of
                                                                          the European Communities against Portuguese Republic
The applicant claims that the Court should:                                                       (Case C-432/03)
—     order the joinder of the present case with the related                                      (2003/C 304/21)
      Cases C-138/03 and C-324/03; annul Memorandum
      No 26777a of the European Commissioner, Mr Barnier,
      of 29 July 2003 in so far as it excludes from financing
      the advances paid in relation to State aid granted by the
      Member States after 19 February 2003; annul all related            An action against the Portuguese Republic was brought
      and preceding acts;                                                before the Court of Justice of the European Communities on
                                                                         10 October 2003 by the Commission of the European
                                                                         Communities, represented by António Caeiros, acting as
—     order the Commission of the European Communities to                Agent, with an address for service in Luxembourg.
      pay all the costs.
                                                                         The applicant claims that the Court should:
                                                                         1.   Declare that:
Pleas in law and main arguments
                                                                              —     by making tubes of polyethylene imported from
The applicant argues that the contested measure should be                           other Member States subject to an approval pro-
annulled on the following grounds:                                                  cedure, pursuant to Article 17 of Decree-Law No 38/
                                                                                    382 of 7 August 1951, without taking account of
                                                                                    approval certificates issued by those States,
(a)   infringement of Article 32 of Regulation (EC) No 1260/
      1999 (1) and of Rule 1(1) and (2) in the Annex to                             and
      Commission Regulation (EEC) No 1685/2000 (2).
                                                                              —     by omitting to inform the Commission of that
      The contested measure clearly infringed the abovemen-                         measure,
      tioned regulations.
      None of the provisions contained in the abovementioned                  the Portuguese Republic has failed to fulfil its obligations
      regulations states that the activities actually carried out             under Articles 28 EC and 30 EC, and also under Articles 1
      and charged to financing are significant in terms of the                and 4(2) of Decision No 3052/95/EC of the European
      eligibility of the payment made by the final recipients of              Parliament and of the Council (1) of 13 December 1995
      the funding under State aid.                                            establishing a procedure for the exchange of information
                                                                              on national measures derogating from the principle of
                                                                              the free movement of goods within the Community;
      Rather on the contrary, the scheme laid down in those
      regulations, so far as concerns the State aid within the
      meaning of Article 87 EC, considers eligible payment               2.   Order the Portuguese Republic to pay the costs.
 ---pagebreak--- 13.12.2003             EN                        Official Journal of the European Union                                          C 304/15
Pleas in law and main arguments                                          —     there is no possibility of choosing to include capital
                                                                               goods, or goods or a service treated as such, wholly in
                                                                               the assets of an undertaking where the acquirer uses those
In so far as it makes the use of construction products including               goods or that service both within the undertaking and
tubes of polyethylene imported from other Member States                        outside it (in particular for private purposes);
subject to an approval procedure, Article 17 of Decree-Law
No 38/382 constitutes a measure having effect equivalent to a            —     there is, related to this, also no possibility of deducting
quantitative restriction on imports prohibited by Article 28                   directly and wholly the tax charged on the acquisition of
EC. The Portuguese authorities have not explained why tubes                    those goods or that service; and
of polyethylene should constitute a danger to human life or
health and have not put forward any other overriding reasons.
                                                                         —     there is no provision for the charging of VAT as intended
                                                                               in Article 6(2)(a) of the Sixth Directive,
The authorities of the Member States are not entitled to
demand, where there is no need, technical or chemical analyses           compatible with the Sixth Directive — in particular
or laboratory tests when those analyses or tests have already            Article 17(1), (2) and (6) and Article 6(2) thereof?
been performed in another Member State and the results are
available to those authorities or can, at their request, be made
available.                                                               (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             harmonization of the laws of the Member States relating to
                                                                             turnover taxes — Common system of value added tax: uniform
The Portuguese authorities are obliged, in accordance with the               basis of assessment (OJ L 145 of 13.6.1977, p. 1).
Court of Justice’s case-law, to take into account certificates
issued by certification bodies in other Member States which,
although they are not members of the European Association
for Technical Approval in Construction, are recognised to be
suitable bodies for the purposes of certifying the products in
question. In this instance the Portuguese authorities have failed
to do so.
                                                                         Reference for a preliminary ruling by the hof van beroep
(1) OJ L 321 of 30 December 1995, p. 1.
                                                                         te Antwerpen by interlocutory judgment of that Court of
                                                                         7 October 2003 in the proceedings between 1. British
                                                                         American Tobacco International Limited, 2. N.V. Newman
                                                                         Shipping & Agency Company, and the Belgian State,
                                                                                                 Ministry of Finance
                                                                                                   (Case C-435/03)
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 10 October
2003 in the appeal in cassation brought by P. Charles and                                         (2003/C 304/23)
    T.S. Charles-Tijmens against the Inspector of Taxes
                        (Case C-434/03)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by interlocutory judgment of the hof
                        (2003/C 304/22)                                  van beroep te Antwerpen (Court of Appeal, Antwerp) of
                                                                         7 October 2003, received at the Court Registry on 14 October
                                                                         2003, for a preliminary ruling in the proceedings between
                                                                         1. British American Tobacco International Limited, 2. N.V.
Reference has been made to the Court of Justice of the                   Newman Shipping & Agency Company, and the Belgian State,
European Communities by judgment of the Hoge Raad der                    Ministry of Finance on the following questions:
Nederlanden (Supreme Court of the Netherlands) of 10 Octo-
ber 2003, received at the Court Registry on 13 October 2003,             1.    Can there be a ‘supply of goods’ within the meaning of
for a preliminary ruling in the appeal in cassation brought by                 the Sixth VAT Directive (1), with the consequence that
P. Charles and T.S. Charles-Tijmens against the Inspector of                   VAT can be charged:
Taxes on the following question:
                                                                               —     in the absence of any consideration?
Is a statutory scheme such as that set out in section 3.4.1
above, which was already in existence before the Sixth                         —     in the absence of transfer of the right to dispose
Directive (1) was adopted and under which:                                           freely of the goods as owner?