CELEX: C1997/108/16
Language: en
Date: 1997-04-05 00:00:00
Title: Action brought on 4 February 1997 by the Federal Republic of Germany against the Commission of the European Communities (Case C-44/97)

5 . 4 . 97          FENI                    Official Journal of the European Communities                                     No C 108/9
A decision rendered in divorce proceedings ordering                    Article 9 of the Sixth Council Directive 77/388/EEC of
payment of a lump sum and transfer of ownership in                     17 May 1977 on the harmonization of the laws of the
certain property by one party to his or her former spouse              Member States relating to turnover taxes — Common
must be regarded as relating to maintenance and therefore              system of value added tax: uniform basis of assessment
as falling within the scope of the Convention of                       must be interpreted as meaning that the place where the
27 September 1968 on Jurisdiction and the Enforcement                  services principally and habitually carried out by a
of Judgments in Civil and Commercial Matters, as                       veterinary surgeon should be deemed to be supplied is the
amended by the Convention of 9 October 1978 on the                     place where the supplier has established his business or
accession of the Kingdom of Denmark, Ireland and the                   has a fixed establishment from which the services are
United Kingdom of Great Britain and Northern Ireland                   supplied or, in the absence of such a place of business or
and by the Convention of 25 October 1982 on the                        fixed establishment, the place where he has his permanent
accession of the Hellenic Republic, if its purpose is to               address or usually resides.
ensure the former spouse 's maintenance. The fact that in
its decision the court of origin disregarded a marriage                ( l ) OJ No C 208 , 12 . 8 . 1995 .
contract is of no account in this regard.
(') OJ No C 208, 12 . 8 . 1995 .
                                                                       Action brought on 4 February 1997 by the Federal
                                                                       Republic of Germany against the Commission of the
                                                                                            European Communities
                                                                                                    ( Case C-44/97)
               JUDGMENT OF THE COURT
                                                                                                      ( 97/C 108/ 16
                         ( Sixth Chamber)
                        of 6 March 1997                                An action against the Commission of the European
                                                                       Communities was brought before the Court of Justice of
in Case C-167/95 (reference for a preliminary ruling from              the European Communities on 4 February 1997 by the
the Gerechtshof te 's-Hertogenbosch): Maatschap M. J. M.
                                                                       Federal Republic of Germany, represented by Ernst Roder
Linthorst, K. G. P. Pouwels and J. Scheres c.s. v. Inspecteur
                                                                       and Bernd Kloke, of the Federal Economics Ministry.
       der Belastingdienst/Ondernemingen Roermond ( ')
 (Sixth VAT Directive — Article 9 — Supply of veterinary               The applicant claims that the Court should:
                                services)
                            ( 97IC 108/15 )                            — annul          Commission            Decision   96/70 1 /EC    of
                                                                              20 November 1996 (*) amending Decision 96/311/
                                                                              EC (2 ) on the clearance of the accounts presented by
                 (Language of the case: Dutch)                                the Member States in respect of the expenditure for
                                                                              1992 of the Guarantee Section of the European
                                                                              Agricultural Guidance and Guarantee Fund (EAGGF )
                                                                              and in respect of certain expenditure for 1993 in so
   (Provisional translation; the definitive translation will be               far as the sum of DM 19 591 000 for the 'public
           published in the European Court Reports)                           storage of beef' is imposed on the Federal Republic of
                                                                              Germany by Article 2 thereof, rather than assumed by
                                                                              the EAGGF,
 In Case C-167/95 : reference to the Court under Article 177
 of the EC Treaty from the Gerechtshof (Regional Court of               — order the Commission to pay the costs .
 Appeal ), ' s-Hertogenbosch, for a preliminary ruling in the
 proceedings pending before that court between Maatschap                 Pleas in law and main arguments adduced in support:
 M. J. M. Linthorst, K. G. P. Pouwels and J. Scheres c.s. v.
 Inspecteur der Belastingdienst/Ondernemingen Roermond
 — on the interpretation of Article 9 of the Sixth Council               The Commission objected that, in the buying-in, storage
 Directive 77/388/EEC of 17 May 1977 on the                              and sale of intervention beef, the German authorities did
  harmonization of the laws of the Member States relating                not carry out suitable and adequate inspections, and that,
  to turnover taxes — Common system of value added tax:                  in particular, no documentary evidence was provided that
  uniform basis of assessment ( OJ No L 145, 13 . 6 . 1977,              all prescribed entry inspections were carried out by
  p. 1 ) — the Court ( Sixth Chamber ), composed of: G. F.                officials  of the     Bundesanstalt fur      Landwirtschaftliche
  Mancini, President of the Chamber, J. L. Murray, C. N.                  Marktordnung (Federal Office for the Organization of
  Kakouris ( Rapporteur ), P. J. G. Kapteyn and G. Hirsch,                Agricultural Markets). It also complained that inventory
  Judges; N. Fennelly, Advocate-General, L. Hewlett,                      controls were not carried out in accordance with Articles 3
  Administrator, for the Registrar, gave a judgment on                    and 4 of Regulation (EEC) No 618/90 . However, the
  6 March 1997, the operative part of which is as follows :               Commission was unable sufficiently to demonstrate, either
 ---pagebreak--- No C 108/ 10              EN                  Official Journal of the European Communities                                         5 . 4 . 97
in the initial correspondence, or in bilateral talks, or in the                supply' in Article 11 ( A) ( 3 ) ( b ) of the Sixth Council
arbitration procedure, that the inspection system gave rise                    Directive ( 77/388/EEC ) of 17 May 1977 on the
to the significant risks it claims. Moreover, the inspection                   harmonization of the laws of the Member States
reports pursuant to Regulation (EEC ) No 618/90 were                           relating to turnover taxes — Common system of
based on an erroneous interpretation of Article 3 in                           value added tax: uniform basis of assessment (') to be
conjunction with Annex II of that regulation. The                              interpreted to cover the whole cost of the redemption
requirements placed by the Commission on the inspection                        goods ?
procedure in Germany were based, as least in so far as
their contents were concerned, on Article 17 of Regulation
( EEC) No 2456/93 , a legal basis which at the time in                   2.    Are the redemption goods to be treated as ' supplies
question, namely 1992, was not yet applicable . The                            made for consideration' for the purposes of Article 5
accusation that the German inspection system was                               ( 6 ) of that Directive ?
unreliable can be seen to be untenable merely by looking
at the actual economic circumstances, since an exchange
of good quality procedure for lesser quality produce,                    3.    If the redemption goods are provided otherwise than
which the Commission regards as possible, would                                for consideration or 'free of charge', is Article 5 ( 6 )
inevitably have led to complaints from purchasers, who                         to be interpreted as requiring that the provision of
would have been defrauded in those circumstances . The                         the redemption goods be treated as a supply for
 German Government maintains that its position is further                      consideration notwithstanding that such provision is
supported by the final report of the arbitration body.                          for business purposes ?
 (') OJ No L 323 , 13 . 12 . 1996 , p . 26 .                             4.     Do any of the foregoing questions require a different
 ( 2 ) OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    answer
                                                                                ( a ) where all the vouchers redeemed for any item of
                                                                                       redemption goods were obtained on purchases of
                                                                                       premium goods from the promoter of the scheme,
 Reference for a preliminary ruling by the VAT and Duties
                                                                                ( b ) where those vouchers were all obtained on
 Tribunal, London, by direction of that court of 15 January
  1997, in the case of Kuwait Petroleum (GB ) Ltd against                              purchases of premium goods from a trader who
               the Commissioners of Customs and Excise                                 was a participating dealer in the scheme, or
                             (Case C-48/97 )
                                                                                 ( c ) where the vouchers redeemed were obtained
                              97/C 108/ 17 )                                           partly on purchases of premium goods from the
                                                                                       promoter and partly on purchases of premium
                                                                                       goods from one or more participating dealers ?
  Reference has been made to the Court of Justice of the
  European Communities by a direction of the VAT and
  Duties Tribunal, London, of 15 January 1997, which was                  5.     If the answer to question 3 is 'No', is the United
  received at the Court Registry /on 6 February 1997, for a                      Kingdom entitled pursuant to Article 27 of the Sixth
  preliminary ruling in the case of Kuwait Petroleum ( GB )                      Council Directive and under the derogation obtained
  Ltd against the Commissioners of Customs and Excise, on                        by it in 1977 to impose an output tax charge on the
  the following questions:                                                       promoter which is based on the cost to the promoter
                                                                                  of the redemption goods in addition to the output tax
                                                                                  included in the full retail price of the premium
  Where a supplier of goods operates a business promotion                         goods ?
   scheme, under which, in outline :
                                                                          H OJ No L 145, 13 . 6 . 1977, p. 1 .
   (i)     the promoter provided redemption goods for business
           purposes in accordance with the terms of the scheme;
   ( ii ) for no payment in money at the point of redemption;
                                                                          Action brought on 6 February 1997 by the Commission of
    ( iii) against the redemption of vouchers to which a                     the European Communities against the French Republic
           purchaser of premium goods became entitled by
           paying the full retail price of those goods without                                       ( Case C-49/97)
           making any identifiable monetary payment for the                                            ( 97/C 108/ 18 )
           vouchers .
     1.     Is the expression 'price discounts and rebates allowed        An action against the French Republic was brought before
            to the customer and accounted for at the time of               the Court of Justice of the European Communities on