CELEX: C1997/318/17
Language: en
Date: 1997-10-18 00:00:00
Title: Appeal brought on 26 August 1997 by Fernando Carbajo Ferrero against the judgment delivered on 12 June 1997 by the First Chamber of the Court of First Instance of the European Communities in Case T-237/95 between Fernando Carbajo Ferrero and the European Parliament (Case C-304/97 P)

18 . 10 . 97             EN                  Official Journal of the European Communities                                      C 318/9
Reference for a preliminary ruling from the Landesgericht                     federal structure lays down that in the case of
für Zivilrechtssachen Wien by order of that court of                          infringements imputable to a part of the State, the
13 August 1997 in the case of Klaus Konle v. Republic of                      injured party may claim only against the part State,
                                Austria                                       not the State as a whole ?
                          ( Case C-302/97)
                            ( 97/C 318/15 )
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling from the Bundes­
European Communities by an order of the Landesgericht                   gerichtshof by order of that court of 26 June 1997 in
für Zivilrechtssachen Wien ( Regional Civil Court, Vienna )             the case of Verbraucherschutzverein e.V. v. Sektkellerei
of 13 August 1997, which was received at the Court                                         G. C. Kessler GmbH & Co.
Registry on 22 August 1997, for a preliminary ruling in                                              ( Case C-303/97
the case of Klaus Konle v. Republic of Austria on the
following questions :                                                                                  ( 97/C 318/ 16 )
1 . Does it follow from the interpretation of Articles 6, 52            Reference has been made to the Court of Justice of the
     et seq. ( Part Three, Title III, Chapter 2 ) and Article 73b       European Communities by an order of the Bundesgerichts­
     et seq. ( Part Three, Title III, Chapter 4 ) of the EC             hof ( Federal Court of Justice ) of 26 June 1997, which was
     Treaty and Article 70 of the Act of Accession ( Act                received at the Court Registry on 25 August 1997, for a
     concerning the conditions of accession of [...] the                preliminary ruling in the case of Verbraucherschutz­
                                                                        verein e.V. v. Sektkellerei G. C. Kessler GmbH & Co .
     Republic of Austria [...] and the adjustments to the
     treaties on which the European Union is founded )                  on the following questions on the interpretation of
     that:                                                              Article 13 ( 2 ) ( b ) of Council Regulation ( EEC ) No 2333/
                                                                        92 of 13 July 1992 laying down general rules for the
                                                                        description and presentation of sparkling wines and
     ( a ) in that, while the Tiroler Grundverkehrsgesetz               aerated sparkling wines ('):
           ( TGVG ) 1993 was in force, the plaintiff was
           required to prove that he would not establish a              ( a ) Does it suffice for the prohibition in Article 13 ( 2 ) ( b )
           holiday residence, whereas in the case of an
                                                                              of the said Regulation to be applicable that a word in
           acquisition by an Austrian a mere declaration
                                                                              a brand name used to describe the sparkling wine ( in
           under Paragraph 10 ( 2 ) would have sufficed to
           obtain    the   consent   of  the  land    transactions
                                                                              this case 'Hochgewächs') may be confused with part
                                                                              of the description of a wine ( in this case ' Riesling-
           authority, and he was refused consent, and                         Hochgewächs') not used for constituting the cuvée of
                                                                              the sparkling wine, even if it is not the case that a
     ( b ) in that, under the TGVG 1996 , the plaintiff, even                 substantial proportion of consumers form mistaken
           before his property right is entered in the land                   impressions as to the composition of the cuvée which
           register, must — as Austrians now also must —                      influence their purchases, and there is no intent to
           undergo a consent procedure, the possibility of                    deceive on the part of the owner of the brand ?
           making an effective declaration that no holiday
           residence is being created no longer existing for            ( b ) If so, may the industrial property which the owner of
           Austrians either,                                                  the brand has acquired by reason of the traditional
                                                                              undisturbed use of his description in Germany, as a
     Community law was infringed and the plaintiff injured                    higher-ranking interest deserving protection, preclude
     in respect of a fundamental freedom guaranteed by                        the application of the prohibition of descriptions in
     provisions of Community law ?                                            Article 13 ( 2 ) ( b ) of the said Regulation ?
                                                                        O OJ L 231 , 13 . 8 . 1992, p . 9 .
2 . If so, is it for the Court of Justice, in proceedings
     under Article 177 of the EC Treaty, also to decide
     whether a breach of Community law is 'sufficiently
     serious' ( as the phrase is used, for example, in the
     judgment in Joined Cases C-46/93 and C-48/93
     Brasserie du Pêcheur and Factortame )?                             Appeal brought on 26 August 1997 by Fernando . Carbajo
                                                                        Ferrero against the judgment delivered on 12 June 1997
                                                                        by the First Chamber of the Court of First Instance of the
3 . If Questions 1 and 2 are answered in the affirmative,
                                                                        European Communities in Case T-237/95 between
     is the breach ' sufficiently serious'?
                                                                           Fernando Carbajo Ferrero and the European Parliament
                                                                                                   ( Case C-304/97 P)
4 . Is the principle of the liability of Member States for
                                                                                                        ( 97/C 318/ 17 )
     the damage caused to an individual by breaches
     of Community law complied with, on a proper
     interpretation of Article 5 of the EC Treaty, if the               An appeal against the judgment delivered on 12 June 1997
     national law on liability of a Member State with a                 by the First Chamber of the Court of First Instance of
 ---pagebreak--- C 318/10            1 EN                  Official Journal of the European Communities                                             18 . 10 . 97
the European Communities in Case T-237/95 between                           to be used by a taxable person " for the purposes of his
Fernando Carbajo Ferrero and European Parliament was                        taxable transactions ?
brought before the Court of Justice of the European
Communities on 26 August 1997 by Fernando Carbajo
Ferrero, represented by Georges Vandersanden and Laure               2 . In particular, may the right to deduct be excluded:
Levi, of the Brussels Bar, with an address for service in
Luxembourg at Fiduciaire Myson, 30 Rue de Cessange .                        ( a ) even though the cars are essential tools of the
                                                                                  business in the sense that the business by definition
The appellant claims that the Court should:                                       would not exist without the cars ( e.g. the car­
                                                                                  leasing business of the Royscot companies, and the
                                                                                  car-leasing and car-hire businesses of the T. C.
— set aside the judgment of the Court of First Instance of                        Harrison group )?
     the European Communities of 12 June 1997 in Case
     T-237/95 between the same parties,
                                                                            ( b ) even though the cars are never available for
                                                                                  private use by the taxable person or his staff
— accordingly, grant the form of order sought by the                              (e.g. , the car-leasing businesses of the Royscot
     applicant at first instance,                                                 companies and of the T. C. Harrison group )?
— order the defendant to pay all the costs, including                       ( c ) even though the taxable person could not carry
     those incurred at first instance .                                           on his business at all without the cars ( e.g. ,
                                                                                  'demonstrator' cars acquired by a member of the
                                                                                  T. C. Harrison group in its dealership business )?
Pleas in law and main arguments adduced in support:
                                                                            ( d ) even though the taxable person 's employees could
The appellant maintains all the pleas and arguments of                            not perform their duties without the cars ( e.g. ,
his action and bases the appeal on infringement of                                the travelling salesmen employed by the Allied
Community law by the Court of First Instance . It is based,                       Domecq group )?
further, on a breach of procedure inasmuch as the Court
of First Instance refused to direct the Parliament to
                                                                         . ( e ) notwithstanding ( a ), (c ) or ( d ) above, on the
produce a letter on which the action relied in order to cast
                                                                                  ground that the taxable person's employees are
doubt on the impartiality of a member of the selection
board .
                                                                                  permitted to make some, subsidiary, private use of
                                                                                  the cars outside working hours ?
                                                                     3 . Is it material to question 2 (e ) above to consider
                                                                            whether :
Reference for a preliminary ruling by the Court of Appeal,                  ( a ) an apportionment of the expenditure on the cars
London, by order of that court dated 29 July 1997, in the                         can be made between the business use and the
case of 1 . Royscot Leasing Ltd and Royscot Industrial                            private use ?
Leasing Ltd 2 . Allied Domecq pic 3 . T. C. Harrison
 Group Ltd against Commissioners of Customs and Excise                      ( b ) the permission to make private use of the cars is a
                        ( Case C-305/97 )                                         taxable transaction for VAT purposes because the
                          ( 97/C 318/18 )
                                                                                  taxable person charges the employees a fee for that
                                                                                  use ?
Reference has been made to the Court of Justice of the               4. Did the authorization granted to Member States by
European Communities by an order of the Court of                            the second subparagraph of Article 17 ( 6 ) lapse at the
Appeal, London, dated 29 July 1997, which was received                      end of the four year period referred to in the first
at the Court Registry on 26 August 1997, for a                              subparagraph ?
preliminary ruling in the case of 1 . Royscot Leasing Ltd
and Royscot Industrial Leasing Ltd 2 . Allied Domecq pic
3 . T. C. Harrison Group Ltd against Commissioners of                (') Second Council Directive 67/228/EEC of 11 April 1967 on the
Customs and Excise on the following questions:                             harmonization of legislation of Member States concerning
                                                                           turnover taxes, structure and procedures for application of the
                                                                           common system of value added tax ( OT 71 , 14 . 4 . 1967,
1 . Did Article 11 ( 4 ) of the second Council Directive of                p. 1303 ).
     11 April 1967 ( ! ) authorize Member States to                  ( 2 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of the laws of the Member States relating to
     introduce or retain, and does the second subparagraph                 turnover taxes — common system of value added tax: uniform
     of Article 17 ( 6 ) of the sixth Council Directive of                 basis of assessment ( OJ L 145 , 13 . 6 . 1977, p. 1 ).
     17 May 1977 (2 ) authorize Member States to retain,
     national laws which exclude, without limit, the right
     to deduct VAT payable on the purchase of motor cars