CELEX: C2002/156/11
Language: en
Date: 2002-06-29 00:00:00
Title: Case C-149/02: Action brought on 25 April 2002 by the Commission of the European Communities against the Kingdom of the Netherlands

C 156/6                 EN                    Official Journal of the European Communities                                        29.6.2002
Action brought on 17 April 2002 by the Commission of                     therefore observed, even where the subsidy payment is taxable
the European Communities against the Federal Republic                    as part of the consideration received in return for the sale of
                            of Germany                                   the products (or the provision of the services).
                         (Case C-144/02)                                 The fact that when the products leave the processing undertak-
                                                                         ing, the subsidy is effectively paid as an advance on the total
                                                                         sale price even if there is no actual contract with the recipient
                         (2002/C 156/10)                                 of the products, does not preclude the subsidy from forming
                                                                         part of the consideration. Even though for each individual sale
                                                                         it may be impossible to calculate the exact proportion of
                                                                         the consideration constituted by the subsidy, no practical
An action against the Federal Republic of Germany was                    difficulties are to be expected. The taxable amount is instead
brought before the Court of Justice of the European Communi-             calculated on the basis of the consideration obtained plus the
ties on 17 April 2002 by the Commission of the European                  total subsidies received. In the Commission’s view, the fact
Communities, represented by Enrico Traversa, Legal Adviserl,             that the majority of Member States already tax dried fodder
and Kilian Gross, of its Legal Service, with an address for              subsidies shows that no difficulties arise in practice.
service in Luxembourg at the office of Luis Escobar Guerrero,
of its Legal Service, at Wagner Centre C 254, Kirchberg,
Luxembourg.
                                                                         (1) OJ L 63, 21.3.1995, p. 1.
                                                                         (2) OJ L 145, 13.6.1977, p. 1.
The applicant claims that the Court should:
1.    declare that by failing to make financial aid payable under
      Council Regulation (EC) No 603/95 (1) of 21 February
      1995 on the common organisation of the market in dried
      fodder subject to VAT (value added tax), the Federal
      Republic of Germany has failed to fulfil its obligations
      under Article 11 of the Sixth VAT Directive (Council               Action brought on 25 April 2002 by the Commission of
      Directive 77/388/EEC) (2);                                         the European Communities against the Kingdom of the
                                                                                                    Netherlands
2.    order the Federal Republic of Germany to pay the costs
      of the proceedings.                                                                        (Case C-149/02)
                                                                                                 (2002/C 156/11)
Pleas in law and main arguments
                                                                         An action against the Kingdom of the Netherlands was brought
In its reference to ‘subsidies directly linked to the price of such      before the Court of Justice of the European Communities
[taxable] supplies’, the Community legislator intended, by               on 25 April 2002 by the Commission of the European
using such general wording, to include in the basis of                   Communities, represented by H. van Lier and M. Patakia,
assessment for VAT purposes all subsidies directly related to            acting as Agents.
the price of the goods sold or the services provided, i.e.,
subsidies which have a direct effect on the amount of
consideration received by the supplier. There must be a                  The applicant claims that the Court should:
direct, causal relationship, which is precisely quantified or
quantifiable, between those subsidies and the supply of the
goods or services: the subsidy is granted where and to the               1.    Declare that, by failing to bring into force the laws,
extent that those goods (or services) are, in fact, sold on the                regulations and administrative provisions necessary to
market. The subsidy granted per tonne of dried fodder pursuant                 comply with Directive 98/5/EC (1) of the European Parlia-
to Directive 603/95 has such a direct, causal effect on the sale               ment and of the Council of 16 February 1998 to facilitate
price of dried fodder. The processing undertakings can sell the                practice of the profession of lawyer on a permanent
dried fodder at the world market price, which is less than the                 basis in a Member State other than that in which the
price they would have to charge on the basis of their costs,                   qualification was obtained, or in any event by failing to
only because they are in receipt of the relevant subsidies. The                inform the Commission of those provisions, the Kingdom
fact that the level of the subsidy is not adjusted to take account             of the Netherlands has failed to fulfil its obligations under
of fluctuations in the world market price, does not alter the                  that directive;
fact that the subsidy acts as a price supplement. The spirit and
the purpose of Article 11(A)1(a) of the Sixth VAT Directive is           2.    Order the Kingdom of the Netherlands to pay the costs.
 ---pagebreak--- 29.6.2002              EN                    Official Journal of the European Communities                                       C 156/7
Pleas in law and main arguments                                         4.    Is it in breach of Directive 93/104/EC for a rule of
                                                                              national law to permit a collective agreement or a works
                                                                              agreement based on a collective agreement to allow rest
                                                                              periods, where time is spent on call and stand-by, to be
The period for implementation of the directive expired on                     adapted to the special circumstances of such duties,
14 March 2000.                                                                including in particular reductions in rest periods as a
                                                                              result of work actually being carried out, with these
                                                                              periods of duty being compensated for at other times?
(1) OJ 1998 L 77, p. 36.
                                                                        (1) OJ L 307, p. 18.
Reference for a preliminary ruling by the Landesarbeits-
gericht Schleswig-Holstein by order of that Court of
25 March 2002 in the case of Landeshauptstadt Kiel
                against Dr. med. Norbert Jaeger
                                                                        Reference for a preliminary ruling by the Bundesfinanz-
                                                                        hof by order of that Court of 21 March 2002 in the
                                                                        case of Terra Baubedarf-Handel GmbH against Finanzamt
                         (Case C-151/02)                                                     Osterholz-Scharmbeck
                         (2002/C 156/12)                                                        (Case C-152/02)
                                                                                                (2002/C 156/13)
Reference has been made to the Court of Justice of the
European Communities by order of the Landesarbeitsgericht
Schleswig-Holstein (Schleswig-Holstein Higher Labour Court)
of 25 March 2002, received at the Court Registry on 26 April
                                                                        Reference has been made to the Court of Justice of the
2002, for a preliminary ruling in the case of Landeshauptstadt
                                                                        European Communities by order of the Bundesfinanzhof
Kiel against Dr. med. Norbert Jaeger on the following questions:
                                                                        (Federal Finance Court) of 21 March 2002, received at the
                                                                        Court Registry on 26 April 2002, for a preliminary ruling in
1.    Does time spent on call by an employee in a hospital, in          the case of Terra Baubedarf-Handel GmbH against Finanzamt
      general, constitute working time within the meaning of            Osterholz-Scharmbeck on the following question:
      Article 2(1) of Directive 93/104/EC (1) even where the
      employee is permitted to sleep at times when he is not
      required to work?                                                 Can a taxable person exercise his right to deduct only in
                                                                        respect of the calendar year in which he holds an invoice
                                                                        pursuant to Article 18(1)(a) of Directive 77/388/EEC (1) or
2.    Is it in breach of Article 3 of Directive 93/104/EC for a         must the right to deduct always be exercised (even if retrospec-
      rule of national law to classify time spent on call as a rest     tively) in respect of the calendar year in which the right to
      period unless work is actually carried out, where the             deduct pursuant to Article 17(1) of Directive 77/388/EEC
      employee stays in a room provided in a hospital and               arose?
      works as and when required to do so?
3.    Is it in breach of Directive 93/104/EC for a rule of
      national law to permit a reduction in the daily rest period
      of 11 hours in hospitals and other establishments for the         (1) OJ L 145, p. 1.
      treatment, care and supervision of persons, where the
      amount of time actually worked during time spent on
      call or stand-by, not exceeding one half of the rest period,
      is compensated for at other times?