CELEX: C1998/397/43
Language: en
Date: 1998-12-19 00:00:00
Title: Action brought on 4 November 1998 by the Commission of the European Communities against the Hellenic Republic (Case C-391/98)

C 397/24              EN                    Official Journal of the European Communities                                       19.12.98
the EC Treaty to adopt the measures needed to transpose                           Ð in so far as may be necessary, annul the
directives into national law before the expiry of the period                          decision adopted by the Commission on
laid down for that purpose and to communicate those                                   3 February 1997 expressly rejecting the
measures immediately to the Commission. That period                                   appellant's complaint;
expired on 31 December 1996 without the Hellenic
Republic having communicated to the Commission
                                                                            (c) order the defendant to pay all the costs of both
provisions transposing the directive at issue into national
                                                                                  sets of proceedings.
law.
(1) OJ L 365, 31.12.1994, p. 34.                                       Pleas in law and main arguments adduced in support:
                                                                       Ð Erroneous legal characterisation of the appellant's
                                                                            request, giving rise to incorrect legal consequences:
                                                                            the appellant's request, although based on
                                                                            Article 31(2) of the Staff Regulations of officials, was
                                                                            intended to secure an assessment of his qualifications
Appeal brought on 2 November 1998 by Hans Gevaert
                                                                            with a view to a possible revision of his current
against the order made on 19 August 1998 by the First
                                                                            classification, not of his initial classification, the latter
Chamber of the Court of First Instance of the European
                                                                            being neither directly nor indirectly in issue.
Communities in Case T-160/97 between Hans Gevaert
    and the Commission of the European Communities
                       (Case C-389/98 P)                               Ð (In the alternative) erroneous legal characterisation of
                                                                            the decision of 7 February 1996 (Administrative
                         (98/C 397/42)                                      Notices of 27.3.1996) by which the Commission
                                                                            amended its decision concerning the criteria
                                                                            applicable to appointment in grade and classification
An appeal against the order made on 19 August 1998 by                       in step upon recruitment; breach of the principle of
the First Chamber of the Court of First Instance of the                     equality of treatment and infringement of Article 5(3)
European Communities in Case T-160/97 between Hans                          of the Staff Regulations of officials: to reserve the
Gevaert and the Commission of the European                                  benefit of the Commission's decision of 7 February
Communities was brought before the Court of Justice of                      1996 solely to officials appointed after it entered into
the European Communities on 2 November 1998 by Hans                         force, notwithstanding that those officials would in
Gevaert, represented by Nicolas LhoeÈst, of the Brussels                    the future be working in the same institution
Bar, with an address for service in Luxembourg at the                       alongside other officials classified in accordance with
Offices of the Fiduciaire Myson SARL, 30 Rue de                             earlier (less favourable) criteria, would be wholly
Cessange.                                                                   contrary to the principle of euqality of treatment.
The appellant claims that the Court should:                            Ð Contradictory statements in the grounds of the
                                                                            judgment.
1.   declare the appeal admissible and well founded;                   (1) Order of 19.8.1998 in Case T-160/97 (OJ C 327, 24.10.1998,
                                                                           p. 24).
2.   consequently:
     (a) set aside the order made (1);
     (b) itself determine the proceedings and, allowing the            Action brought on 4 November 1998 by the Commission
          appellant's initial application:                             of the European Communities against the Hellenic
                                                                                                   Republic
          Ð rule that the appellant's request for                                              (Case C-391/98)
              consideration to be given to the possible
              application of Article 31(2) of the Staff                                         (98/C 397/43)
              Regulations,      with    a      view     to    his
              reclassification in grade with effect from
              5 October 1995, is admissible;                           An action against the Hellenic Republic was brought
                                                                       before the Court of Justice of the European Communities
          Ð consequently,        annul     the    Commission's         on 4 November 1998 by the Commission of the European
              decision of 26 August 1996 rejecting the                 Communities, represented by Maria Kondou-Durande, of
              appellant's request for an examination of the            its Legal Service, with an address for service in
              possible application of Article 31(2) of the             Luxembourg at the Office of Carlos Gómez de la Cruz, of
              Staff Regulations;                                       its Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- 19.12.98              EN                Official Journal of the European Communities                                  C 397/25
The Commission claims that the Court should:                              light passenger vehicles taking account only of the
                                                                          cylinder capacity of the vehicle, subject to
                                                                          deduction from the levy of a percentage of 18 %,
                                                                          24 %, 32 %, 41 %, 49 %, 55 %, 61 % or 67 %
Ð declare that, by not adopting within the time-limit laid
                                                                          (depending whether the imported vehicle has been
     down the laws, regulations and administrative
                                                                          in use for between one and two, two and three,
     provisions necessary to comply with Council Directive
                                                                          three and four, four and five, five and six, six and
     93/3/EEC (1) of 14 June 1993 on the hygiene of
                                                                          seven or seven and eight years) of what would be
     foodstuffs, the Hellenic Republic has failed to fulfil its
                                                                          payable on a new vehicle (imported or bought on
     obligations under that directive;
                                                                          the domestic market) and where for a vehicle
                                                                          which has been used for more than eight years
                                                                          33 % of the car tax which would be payable on a
Ð order the Hellenic Republic to pay the costs.                           new vehicle (imported or bought on the domestic
                                                                          market) has to be paid without, in either of such
                                                                          situations, account being taken of all the other
Pleas in law and main arguments adduced in support:                       factors which influence the value of a car, such as
                                                                          kilometrage, strate of upkeep and the model,
                                                                          among others, guarantee perfect neutrality of
                                                                          domestic taxation as regards competition between
The Member States are required by the binding character                   domestic and imported products (in this case cars)
of the third paragraph of Article 189 and of Article 5 of                 and is it compatible with the first paragraph of
the EC Treaty to adopt the measures needed to transpose                   Article 95 of the EC Treaty?
directives into national law before the expiry of the period
laid down for that purpose and to communicate those
measures immediately to the Commission. That period
expired on 14 December 1995 without the Hellenic                       2. It is compatible with the first paragraph of
Republic having communicated to the Commission                            Article 95 of the EC Treaty for national legislation
provisions transposing the directive at issue into national               to provide that the tax levied on an imported
law.                                                                      product and the tax levied on a similar national
                                                                          product are to be calculated differently and
                                                                          according to different procedures: the car tax on
(1) OJ L 175, 19.7.1993, p. 1.
                                                                          the imported use vehicle is calculated on the basis
                                                                          of its cylinder capacity, subject to a deduction
                                                                          based solely its years of use whereas in
                                                                          transactions on the national market involving a
                                                                          similar use vehicle no car tax is paid (since, being
                                                                          a single-stage tax, it is paid only once when the
                                                                          vehicle is put into circulation, in new condition),
Reference for a preliminary ruling by the Supremo                         when the fact is that its price may still incorporate
Tribunal Administrativo, Second Chamber, by judgment of                   a residual portion of that tax if it has not been in
that court of 7 October 1998, in the case of MinisteÂrio                  use for more than about four to five years, that
   Publico and António Gomes Valente v. Fazenda PuÂblica                  portion always being of uncertain amount, and
                                                                          not being separate from the purchase price, or
                       (Case C-393/98)                                    separable from it, because, amongst other reasons,
                                                                          the purchase of a used vehicle in Portugal is not
                        (98/C 397/44)                                     subject to car tax?
Reference has been made to the Court of Justice of the
                                                                       3. In the light of the first paragraph of Article 95 of
European Communities by a judgment of the Second
                                                                          the EC Treaty, may it be considered that such a
Chamber of the Supremo Tribunal Administrativo
                                                                          system cannot, not even in only a few cases, lead
(Supreme Administrative Court) of 7 October 1998, which
                                                                          to higher taxation of the imported product and
was received at the Court Registry on 5 November 1998,
                                                                          that the system is regulated in such a way that the
for a preliminary ruling in the case of MinisteÂrio Publico
                                                                          possibility is always concluded of an imported
and António Gomes Valente v. Fazenda PuÂblica, on the
                                                                          vehicle being taxed at a higehr level than a similar
following questions:
                                                                          national vehicle?
(a) Are the questions raised in these proceedings by the
      appellant and set out below relevant? What is the                4. May, in the light of Community law, such a
      answer to those questions under Community law?                      system be regarded as transparent to the requisite
                                                                          extent so as to make it possible to determine
                                                                          objectively whether the fiscal charge on an
      1. Does legislation, like the Portuguese legislation,               imported car exceeds that levied on a similar
         which imposes a fixed-rate levy on imported used                 national car?