CELEX: C1999/033/08
Language: en
Date: 1999-02-06 00:00:00
Title: Reference for a preliminary ruling by the Second Chamber of the Supremo Tribunal Administrativo by judgment of that court of 28 October 1998, in the case of Fazenda Pública v Câmara Municipal do Porto (Case C-446/98)

6.2.1999             EN                  Official Journal of the European Communities                                       C 33/5
2. If the first part of the first question is answered in the       Reference for a preliminary ruling by the Second Chamber
    affirmative, is a Member State in principle obliged to          of the Supremo Tribunal Administrativo by judgment of
    refund to a trader financial charges on the value of            that court of 28 October 1998, in the case of Fazenda
    exported goods which must be regarded as levied in                          PuÂblica v CaÃmara Municipal do Porto
    breach of Community law, on the basis that it is                                        (Case C-446/98)
    established that the person who was required to pay
    the charges at issue in fact passed them on to other                                     (1999/C 33/08)
    persons, namely the purchasers of the goods, and it
    does not follow, nor does the trader claim, that that
    charge caused an increase in the price of the products          Reference has been made to the Court of Justice of the
    and a reduction in the volume of his sales with the             European Communities by a judgment of the Second
    result that he suffered subsequent loss?                        Chamber of the Supremo Tribunal Administrativo
                                                                    (Supreme Administrative Court) of 28 October 1998,
                                                                    which was received at the Court Registry on 7 December
                                                                    1998, for a preliminary ruling in the case of Fazenda
                                                                    PuÂblica v CaÃmara Municipal do Porto, on the following
                                                                    questions:
Reference for a preliminary ruling by the Pretura                   (a) Does the expression activities or transactions in
Circondariale di Milano by order of that court of                         which they engage as public authorities' used in the
6 November 1998 in the case of Unilever Italia SpA                        first subparagraph of Article 4(5) of the Sixth VAT
                  against Central Food SpA                                Directive (1) cover the renting out of areas for the
                                                                          parking of vehicles (both on-street and off-street
                       (Case C-443/98)                                    parking) by the public authorities (a municipality)?
                        (1999/C 33/07)
                                                                    (b) May the significant distortions of competition
                                                                          referred to in the second subparagraph of Article 4(5)
                                                                          of the Sixth VAT Directive be defined case by case by
                                                                          the Minister of Finance of a Member State?
Reference has been made to the Court of Justice of the
European Communities by order of the Pretura
Circondariale di Milano (District Magistrate's Court,               (c)   If the national provision which empowers the
Milan) of 6 November 1998, which was received at the                      Minister of Finance to define, case by case,
Court Registry on 7 December 1998, for a preliminary                      significant     distortions     of    competition      is
ruling in the case of Unilever Italia SpA against Central                 unconstitutional, in that it infringes the principle that
Food SpA on the following question:                                       taxation must have a legislative basis, but conforms
                                                                          with Community law (with the Sixth Directive), must
                                                                          the national court comply with its Constitution or
                                                                          must it, first and foremost, comply with Community
May a national provision which has been promulgated                      law by virtue of the principle of the primacy of that
and entered into force in the Member State (Law No 313                    law over constitutions?
of 3 August 1998) be disapplied by a national court called
upon to issue an order for payment in relation to the
supply of extra virgin olive oil labelled in a manner not in        (d) Will the public authorities always be regarded as
accordance with the provisions of the aforementioned                      taxable persons provided that the activities in which
national provision, considering that, following the                       they engage are not insignificant, or are they taxable
notification and the subsequent examination of a draft                    persons only as regards the activities or transactions
national Law concerning the labelling of extra virgin olive               listed in Annex D, to which the third subparagraph
oil, virgin olive oil and olive oil, the European                         of Article 4(5) of the Sixth VAT Directive refers?
Commission, on the basis of Article 9(3) of Council
Directive 83/189/EEC (1) laying down a procedure for the
provision of information in the field of technical standards        (e)   May a national law authorise the Minister of Finance
and regulations, formally requested the notifying State not               to define, case by case, what activities are being
to legislate, prescribing a period (until 14 September                    engaged in on a basis that is not significant?
1999) in respect of the marketing rules for olive oil,
pending the adoption of a Community regulation on the
matter at issue?'                                                   (f)   For the purposes of the last subparagraph of
                                                                          Article 4(5) of the Sixth VAT Directive, may a
                                                                          Member State regard on activity of renting out areas
(1) OJ L 109, 26.4.1983, p. 8.                                            intended for the parking of vehicles, when it is
                                                                          carried on by a municipality, as an activity in which
                                                                          the municipality engages as a public authority, having
                                                                          regard to the provisions of Article 13B(b)(2) of the
                                                                          Sixth VAT Directive?
 ---pagebreak--- C 33/6                 EN                 Official Journal of the European Communities                                  6.2.1999
(g) Since neither of the parties to the main proceedings             geographical area under para. 5(c) of such notification the
      has raised any question of interpretation or                   Landkreise (rural districts) of Gera, Zeitz, Geithain,
      application of the Sixth VAT Directive, may the                Grimma, Wurzen, Borna and the City of Gera (or, to use
      national court, of its own motion, interpret and apply         the nomenclature arising from the redrawing of
      the provisions of that directive when giving its final         boundaries and renaming of districts pursuant to
      decision?                                                      administrative reforms in the relevant Bundesländer of
                                                                     Thüringen, Sachsen and Sachsen-Anhalt, in so far as it
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the         included the Landkreise Greiz and Muldentalkreis, parts
    harmonization of the laws of the Member States relating to       of the Kreise Leipziger Land and Burgenlandkreis and the
    turnover taxes Ð Common system of value added tax:               City of Gera).
    uniform basis of assessment Ð OJ L 145, 13.6.1977, p. 1.
                                                                     Pleas in law and main arguments adduced in support:
                                                                     The appellants plead infringement of the fourth paragraph
                                                                     of Article 173 of the EC Treaty. In their submission, the
                                                                     contested order wrongly denied that they were
Appeal brought on 7 December 1998 by Molkerei                        individually concerned by the regulation. It ignored the
Groûbraunshain GmbH and Bene Nahrungsmittel GmbH                     fact that, in the particular circumstances, the contested
against the order delivered on 15 September 1998 by                  regulation had the effect of a decision; that the plaintiffs'
the Second Chamber of the Court of First Instance                    position was not improved but worsened thereby; that
of the European Communities in Case T-109/97                         erroneous choice of the simplified registration procedure
between Molkerei Groûbraunshain GmbH and Bene                        caused guaranteed hearing rights to be truncated, which
Nahrungsmittel GmbH, supported by Freistaat Thüringen,               would otherwise have conferred standing to bring an
and the Commission of the European Communities,                      action; that the plaintiffs do not have appropriate
supported by Molkerei und Weichkäserei K.-H.                         protection by bringing national legal proceedings; and that
                      Zimmermann GmbH                                in any event no determination could be made as to the
                       (Case C-447/98 P)                             admissibility of the claim without any consideration of its
                         (1999/C 33/09)                              merits.
                                                                     (1) OJ C 378, 5.12.1998, p. 17.
An appeal against the order issued on 15 September 1998
by the Second Chamber of the Court of First Instance
of the European Communities in Case T-109/97 (1)
between Molkerei Groûbraunshain GmbH and Bene
Nahrungsmittel GmbH, supported by Freistaat Thüringen,
and the Commission of the European Communities,                      Reference for a preliminary ruling from the Tribunal de
supported by Molkerei und Weichkäserei K.-H.                         Police, Belley, by judgment of that court of 24 November
Zimmermann GmbH, was brought before the Court of                     1998 in the case of MinisteÁre Public v Jean-Pierre
Justice of the European Communities on 7 December                                               Guimont
1998 by Molkerei Groûbraunshain GmbH and Bene                                              (Case C-448/98)
Nahrungsmittel        GmbH,      represented     by    Michael
Loschelder and Thilo Klingbeil, Rechtsanwälte, Cologne,                                     (1999/C 33/10)
with an address for service in Luxembourg at the
Chambers of Marc Loesch, 11 Rue Goethe.                              Reference has been made to the Court of Justice of the
                                                                     European Communities by a judgment of the Tribunal de
The appellants claim that the Court should:                          Police (Local Criminal Court), Belley, France, of
                                                                     24 November 1998, which was received at the Court
set aside the order of the Court of First Instance and allow         Registry on 9 December 1998, for a preliminary ruling in
the appellants' original claim for the annulment of                  the case of MinisteÁre Public v Jean-Pierre Guimont on the
Commission Regulation (EC) No 123/97 of 23 January                   following question:
1997 supplementing the Annex to Commission Regulation
(EC) No 1107/96 on the registration of geographical                  On a proper construction of Articles 3(a) and 30 et seq. of
indications and designations of origin under the procedure           the Treaty establishing the European Community, as
laid down in Article 17 of Regulation (EEC) No 2081/92               amended, must the French rules enacted by Decree
in so far as, in respect of the product Altenburger                 No 88-1206 of 30 December 1988, which prohibit the
Ziegenkäse (PDO)' referred to in Part A of the Annex to              manufacture and marketing in France of a cheese without
the regulation, the notification by the Federal Republic of          rind under the designation Emmental', be regarded as
Germany of 26 January 1994, as supplemented on                       constituting a quantitative restriction or a measure having
7 August 1996, included in the designation of the relevant           equivalent effect on intra-Community trade?