CELEX: C1999/071/28
Language: en
Date: 1999-03-13 00:00:00
Title: Reference for a preliminary ruling by the Hessisches Finanzgericht by order of that court of 7 May 1998 in the case of Döhler GmbH against Hauptzollamt Darmstadt (Case C-2/99)

C 71/16                EN                  Official Journal of the European Communities                                  13.3.1999
     products may be used for purposes other than                     Genova (Genoa District Court) of 18 December 1998,
     application to the human body and, consequently, may             which was received at the Court Registry on 4 January
     be prepared specifically for such uses; Article 6(2)             1999, for a preliminary ruling in the case of Kofisa Italia
     requires Member States to take all measures necessary            Srl against Ministero delle Finanze and against Servizio
     to ensure that the labelling and presentation of                 della Riscossione dei Tributi Ð San Paolo Riscossione
     cosmetic products do not suggest that those products             Genova SpA on the following questions:
     possess characteristics Ð and, therefore, applications
     Ð which they do not. Thus, contrary to what is stated
     in the contested decision, if a product is intended for          (a) May the appeal referred to in Article 243(2) of
     the cleansing of objects or places, it cannot be called a             Council Regulation (EEC) No 2913/92 (1) be brought
     cosmetic; it falls instead into some other category of                directly before the judicial authority without referring
     goods, subject to other tax arrangements;                             the matter first to the customs authority?
Ð Since it manifestly does not distinguish between                    (b) Is the power to suspend the contested decision
     evasion, avoidance and abuse Ð defined in                             provided for in Article 244 of Regulation (EEC)
     Article 27(1) and (5) of Council Directive                            No 2913/92 conferred exclusively on the customs
     92/83/EEC (5), but equates all those concepts with                    authority or also on the judicial authority before
     evasion, it does not regard as abuse the attempt to                   which an appeal has been brought?
     benefit, without justification, from more favourable
     tax rules (an instance of which has already occurred in
                                                                      (1) OJ L 302, 19.2.1992, p. 1.
     Italy);
Ð In discarding any limits as to alcoholic content and
     therefore permitting the preparation of products which
     are substantially similar in terms of composition and
     potential applications from alcohol which has been
                                                                      Reference for a preliminary ruling by the Hessisches
     completely denatured' Ð to be subject to rules which
                                                                      Finanzgericht by order of that court of 7 May 1998 in the
     are less stringent than those laid down for such
                                                                         case of Döhler GmbH against Hauptzollamt Darmstadt
     alcohol Ð the decision authorises tax discrimination
     between products which lend themselves equally to                                         (Case C-2/99)
     evasion, and such discrimination has repercussions on
     market conditions and consequently on the                                                (1999/C 71/28)
     competitiveness of like products.
                                                                      Reference has been made to the Court of Justice of the
(1) Commission Decision 98/617/EC of 21 October 1998 (OJ
    L 295, 4.11.1998, p. 43) denying authority to Italy to refuse     European Communities by order of the              Hessisches
    the grant of exemption to certain products exempt from excise     Finanzgericht (Finance Court, Hessen) (Seventh Senate) of
    duty under Council Directive 92/83/EEC on the harmonisation       7 May 1998, received at the Court Registry on 5 January
    of the structures of excise duties on alcohol and alcoholic       1999, for a preliminary ruling in the case of Döhler
    beverages.                                                        GmbH v Hauptzollamt Darmstadt on the following
(2) OJ L 51, 25.2.1980, p. 1.                                         questions:
(3) OJ L 262, 27.9.1976, p. 169.
(4) OJ L 151, 23.6.1993, p. 32.
(5) OJ L 316, 31.10.1992, p. 21.
                                                                      1. Is the second sentence of Article 7(5) of Commission
                                                                           Regulation (EEC) No 2169/86 of 10 July 1986 laying
                                                                           down detailed rules for the control and payment of the
                                                                           production refunds in the cereals and rice sectors (1), in
                                                                           the version as amended by Regulation (EEC)
                                                                           No 165/89, to be interpreted as meaning that the
                                                                           expression the party concerned' also includes the
Reference for a preliminary ruling by the Tribunale di                     purchaser of a product CN 3505 10 50, who has for
Genova by order of that court of 18 December 1998 in                       his part undertaken to the manufacturer and/or
the case of Kofisa Italia Srl against Ministero delle Finanze              supplier of that product to use it exclusively for the
and against Servizio della Riscossione dei Tributi Ð San                   manufacture of products other than those listed in
                 Paolo Riscossione Genova SpA                              Annex I?
                          (Case C-1/99)
                         (1999/C 71/27)                               2. If the answer to Question 1 is in the affirmative:
                                                                           (a) Does the required payment by the purchaser of
Reference has been made to the Court of Justice of the                         105 % of the highest production refund applicable
European Communities by order of the Tribunale di                              to the product in question during the previous
 ---pagebreak--- 13.3.1999             EN                Official Journal of the European Communities                                    C 71/17
        12-month period apply irrespective of whether the               Annex III, taking account of the fact that this may,
        security provided by the manufacturer Ð possibly                and in this case does, give rise to differences between
        on account of a knowingly false undertaking by                  the various national laws, with the result that by this
        the party referred to in Question 1 Ð has been                  means the Member States which limit the range of
        released?                                                       containers, like Belgium which limits the range of
                                                                        containers for cider, have at their disposal a measure
                                                                        whose purpose or effect is to restrict the free
    (b) Is it still possible to require payment by the                  movement of goods?
        purchaser of 105 % of the highest production
        refund applicable to the product in question
        during the previous 12-month period if it can no
        longer be determined whether the purchaser gave            2. Having regard to the principle of the free movement
        an undertaking, but it is clear that processing into            of goods, does Directive 75/106/EEC allow Member
        a product other than one listed in Annex I has not              States to implement the directive in such a way that
        taken place or been proved on the part of either                the national legislation prohibits the marketing of
        the purchaser or a subsequent purchaser?                        containers of a quantity not listed in Annex III to the
                                                                        directive, in this case the 33 cl container for the
                                                                        marketing of cider?
3. If the answers to Question 2 are in the affirmative:
                                                                   (1) OJ L 42, 15.2.1975, p. 1.
                                                                   (2) OJ L 308, 4.12.1979, p. 25.
    As from what point in time is the previous 12-month
    period' in the second sentence of Article 7(5) of
    Regulation (EEC) No 2169/86 to be calculated?
(1) OJ L 189, 11.7.1986, p. 12.
                                                                   Reference for a preliminary ruling from the French
                                                                   Conseil d'EÂtat by order of that court of 11 December
                                                                   1998 in the case of Association Greenpeace France,
                                                                   ConfeÂdeÂration Paysanne, Association Ecoropa France and
Reference for a preliminary ruling from the Tribunal de            EÂtienne Vernet, Association Les Amis de la Terre, Lucien
Commerce, Brussels, by judgment of that court of                   Cabanne, SteÂphan Carbonnaux and Guillaume Castaing v
28 December 1998 in the case of Cidrerie Ruwet SA v                French State, in the presence of Novartis Seeds SA and
                                                                                       Monsanto Europe SA
Cidre Stassen SA and H. P. Bulmer Ltd, a company under
                          English law                                                       (Case C-6/99)
                        (Case C-3/99)
                                                                                           (1999/C 71/30)
                       (1999/C 71/29)
                                                                   Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the             European Communities by an order of the French Conseil
European Communities by a judgment of the Tribunal de              d'EÂtat (Council of State) of 11 December 1998, which was
Commerce (Commercial Court), Brussels, of 28 December              received at the Court Registry on 13 January 1999, for a
1998, which was received at the Court Registry on                  preliminary ruling in the case of Association Greenpeace
7 January 1999, for a preliminary ruling in the case of            France, ConfeÂdeÂration Paysanne, Association Ecoropa
Cidrerie Ruwet SA v Cidre Stassen SA and H. P. Bulmer              France and EÂtienne Vernet, Association Les Amis de la
Ltd, a company under English law, on the following                 Terre, Lucien Cabanne, SteÂphan Carbonnaux and
questions:                                                         Guillaume Castaing v French State, in the presence of
                                                                   Novartis Seeds SA and Monsanto Europe SA, on the
                                                                   following questions:
1. Does Article 30 of the EC Treaty preclude Council
    Directive 75/106/EEC (1) of 19 December 1974 on the
    approximation of the laws of the Member States
    relating to the making-up by volume of certain                 (1) Must the provisions of Council Directive 90/220/EEC
    prepackaged liquids, as amended by Directive                        of 23 April 1990 (1) be interpreted as meaning that if,
    79/1005/EEC (2), which provides for a transitional                  after an application to place a genetically modified
    period, from allowing Member States, even today,                    organism on the market has been forwarded to the
    some twenty years later and even though during that                 Commission of the European Communities, no
    period of time habits have changed and the 33 cl                    Member State has raised an objection as provided for
    container has become popular and widely used all                    in Article 13(2) of Directive 90/220/EEC, or if the
    over the world, to authorise or not, as they wish, the              Commission of the European Communities has taken
    marketing of containers other than those listed in                  a favourable decision' pursuant to Article 13(4), the