CELEX: C1996/095/22
Language: en
Date: 1996-03-30 00:00:00
Title: Reference for a preliminary ruling from the Bundesvergabeamt by order of that body of 2 February 1996 in the review procedure of (1) Mannesmann Anlagenbau Austria AG, (2) J.L. Bacon Gesellschaft mbH, (3) Haustechnische Gesellschaft für Sanitär-, Wärme- und Luft-Technische Anlagen GmbH and (4) Sulzer Infra Anlagen- und Gebäudetechnik Gesellschaft mbH v. Strohal Rotationsdruck GmbH (Case C-44/96)

No C 95/ 12              EN                    Official Journal of the European Communities                                     30 . 3 . 96
( 2) order the French Republic to pay the costs.                              establish that undertaking as meeting needs in the
                                                                              general interest not having an industrial or commercial
Pleas in law and main arguments adduced in support:                           character within the meaning of Article 1 ( b ) of Directive
                                                                              93/37/EEC ( ! ) and make such an undertaking as a whole
                                                                              fall within the scope of that Directive, even if those
Infringement of Article 17 (2 ) of Directive 77/388/EEC:
                                                                              activities form only part of the undertaking's activity
contrary to the contention of the French authorities, the
                                                                              and the undertaking in addition participates in the
exception to the principle of entitlement to deduct the input                 market as a commercial undertaking ?
VAT paid by a taxable person, as referred to in Article 17
( 6 ), cannot be interpreted autonomously in such a way as to
allow Member States to maintain exclusions which are                      2 . In the event that such an undertaking falls within the
general and absolute in scope and which apply to all                          scope of Directive 93/37/EEC only with respect to the
expenditure, including that of a business nature . Article 17                 special and exclusive rights conferred on it, is such an
( 6 ) constitutes a ' standstill ' provision adopted in the absence           undertaking obliged to take organizational measures to
of agreement on a Community list of exclusions from the                       prevent financial means obtained from earnings from
deduction entitlement, covering expenditure which is                          those special and exclusive rights being switched to
intended by its nature to satisfy private needs and which                     other sectors of activity ?
cannot therefore give rise to any deduction entitlement; the
second sentence of the first paragraph thus comprises the                 3 . If a contracting authority starts a project and that
minimum agreement which could be reached at the time                          project is therefore to be classified as a public works
when the Directive was adopted .                                              contract within the meaning of Directive 93/37/EEC,
                                                                              may the intervention of a third party who prima facie
The exclusion of the deduction entitlement in respect of                      does not fall within the personal scope of the Directive
vehicles and mixed-use conveyances cannot be justified by                     have the effect of altering the classification of a project
the difficulty involved in ascertaining and checking on the                   as a public works contract, or should such a proceeding
actual use to which a vehicle is put; the consequences of the                 be regarded as an evasion of the personal scope of the
use by a taxable person of certain assets of his undertaking                  Directive and incompatible with the aim and purpose of
for business and private purposes arise from the framework                    the Directive ?
of the deduction entitlement laid down in Article 17 ( 5 ) of
the Directive .
                                                                          4 . If a contracting authority establishes undertakings for
                                                                              carrying on commercial activities and holds majority
(') OJ No L 145 , 13 . 6 . 1977 , p . 1 .
                                                                              holdings in them which enable it to exercise economic
                                                                              control over those undertakings, does the classification
                                                                              as a contracting authority then also apply to those
                                                                              associated undertakings ?
                                                                          5 . If a contracting authority transfers funds which it has
Reference for a preliminary ruling from the                                   earned from special and exclusive rights conferred on it
Bundesvergabeamt by order of that body of 2 February                          to purely commercial undertakings in which it owns a
1996 in the review procedure of ( 1 ) Mannesmann                              majority holding, does that have the effect that,
Anlagenbau Austria AG, (2 ) J.L. Bacon Gesellschaft mbH,                      regardless of the legal position of the associated
( 3 ) Haustechnische Gesellschaft für Sanitär-, Wärme- und                    undertaking, that undertaking as a whole must let itself
Luft-Technische Anlagen GmbH and ( 4 ) Sulzer Infra                           be treated and behave as a contracting authority within
Anlagen- und Gebäudetechnik Gesellschaft mbH v. Strohal                       the meaning of Directive 93/37/EEC ?
                       Rotationsdruck GmbH
                           ( Case C-44/96
                                                                          6 . If a contracting authority which both meets needs in the
                             ( 96/C 95/22 )                                   general interest not having an industrial or commercial
                                                                              character and also carries on commercial activities
Reference has been made to the Court of Justice of the                        establishes operating installations which are capable of
European Communities by an order the Second Senate                            serving both purposes, is the award of the contract for
of the Bundesvergabeamt ( Federal Award Office ) of                           constructing such operating installations to be classified
2 February 19 96 , which was received at the Court Registry                   as a public works contract within the meaning of
on 14 February 1996 , for a preliminary ruling in the review                  Directive 93/37/EEC, or does Community law contain
procedure of ( 1 ) Mannesmann Anlagenbau Austria AG, ( 2 )                    criteria according to which such an operating
J.L. Bacon Gesellschaft mbH, ( 3 ) Haustechnische                             installation can be classified either as serving public
Gesellschaft fur Sanitar-, Warme- und Luft-Technische                         needs or as serving commercial activities, and if so,
                                                                              which criteria ?
Anlagen GmbH and ( 4 ) Sulzer Infra Anlagen- und Ge­
baudetechnik Gesellschaft mbH v. Strohal Rotationsdruck
GmbH on the following questions :                                         7. Does Article 7 ( 1 ) of Council Regulation ( EEC )
                                                                              No 208 1 /93 ( 2 ) of 20 July 1993 amending Regulation
 1 . Can a provision of a national law, such as Paragraph 3                   ( EEC ) No 2052/88 ( 3 ) on the tasks of the Structural
       of the Staatsdruckereigesetz in the present case, which                Funds and their effectiveness and on coordination of
       confers special and exclusive rights on an undertaking,                their activities between themselves and with the
 ---pagebreak--- 30 . 3 . 96            EN                   Official Journal of the European Communities                                  No C 95/ 13
      operations of the European Investment Bank and the               Eerste Aanleg ( Court of First Instance ), Bruges, of
      other existing financial instruments make the recipients         6 February 1996, which was received at the Court Registry
      of Community subsidies subject to the review                     on 16 February 1996, for a preliminary ruling in the case of
      procedures within the meaning of Directive                       BVBA Sanders v. ( 1 ) the Belgian State, Ministry of Finance,
      89/665/EEC, even if they themselves are not contracting          VAT Administration, Registration and State Property, in the
      authorities within the meaning of Article 1 of Directive         person of the Collector of VAT, Roeselare VAT Collection
      93/37/EEC ?                                                      Office, and ( 2 ) the Belgian State, Ministry of Finance, VAT
                                                                       Administration, Registration and State Property, in the
0 ) OJ No L 199 , 1993 , p . 54.                                       person of the Chief Inspector of VAT, Torhout 2 VAT
( 2 ) OJ No L 193 , 1993 , p . 5 .                                     Inspectorate on the following questions :
( 3 ) OJ No L 185 , 1988 , p . 9 .
                                                                       1 . Must Article 18 (4 ) of the Sixth VAT Directive be
                                                                           interpreted as permitting a Member State, instead of
                                                                           refunding to a taxable person a VAT credit for a given
                                                                           tax period, or carrying it forward to a subsequent tax
                                                                           period, to 'withhold' the same by way of protective
Reference for a preliminary ruling from the                                attachment on the basis of an additional demand in
Bundesgerichtshof by order of that court of 11 January                     respect of an earlier tax period, where that additional
1996 in the case of Bayerische Hypotheken- und                             demand is contested in law and is thus not based on any
             Wechselbank AG v. Edgar Dietzinger                            definitive entitlement, and where the Member State has
                          ( Case C-45/96 )                                 not obtained authorization pursuant to Article 27 of the
                                                                           VAT Directive ?
                            ( 96/C 95/23 )
                                                                       2 . In the event that Question 1 is answered in the
Reference has been made to the Court of Justice of the                     affirmative :
European Communities by order of the Bundesgerichtshof
( Federal Court of Justice ) of 11 January 1996, which was                 do the principle of proportionality enshrined in
received at the Court Registry on 15 February 1996 , for a                 Community law and Article 18 ( 4 ) of the Sixth VAT
preliminary ruling in the case of Bayerische Hypotheken­                   Directive permit the Member State to provide :
und Wechselbank AG v. Edgar Dietzinger on the following
question :                                                                 ( 1 ) that the taxable person may contest the attachment
                                                                                 ( as validated by the 'withholding' measure ) only by
where a contract of suretyship is concluded under German                         adducing evidence rebutting the allegations made
law between a financial institution and a natural person
                                                                                 by the Treasury in the official report, and not by
                                                                                 challenging the actual need for, and urgency of, that
who is not acting in that connection in the course of his trade
                                                                                 measure ;
or profession, in order to secure a claim by the financial
institution against a third party in respect of a loan, is it              ( 2 ) that withholding may not be replaced by another
covered by the words 'contracts under which a trader                             form of security nor lifted pending the delivery of
supplies goods or services to a consumer' ( Article 1 ( 1 ) of                   final judgment on the contested demand for
Council Directive 85/577/EEC of 20 December 1985 to
                                                                                 payment made by the Treasury ?
protect the consumer in respect of contracts negotiated
away from business premises, OJ No L 372 , 31 . 12 . 1985 ,
p. 31 )?
                                                                       Action brought on 21 February 1996 by the Commission
                                                                       of the European Communities against the Kingdom of
                                                                                                       Spain
Reference for a preliminary ruling from the Beslagrechter of                                    ( Case C-52/96 )
the Rechtbank van Eerste Aanleg, Bruges, by order of that
court of 6 February 1996 in the case of BVBA Sanders                                              ( 96/C 95/25
v. ( 1 ) the Belgian State, Ministry of Finance, VAT
Administration, Registration and State Property, in the                An action against the Kingdom of Spain was brought before
person of the Collector of VAT, Roeselare VAT Collection               the Court of Justice of the European Communities on
Office, and ( 2 ) the Belgian State, Ministry of Finance, VAT          21 February 1996 by the Commission of the European
Administration, Registration and State Property, in the                Communities, represented by Julian Currall and F. Enrique
person of the Chief Inspector of VAT, Torhout 2 VAT                    Gonzalez Diaz, of its Legal Service, with an address for
                             Inspectorate                              service in Luxembourg at the office of Carlos Gomez
                                                                       de la Cruz, also of its Legal Service, Wagner Centre ,
                          ( Case C-47/96 )
                                                                       Kirchberg.
                            ( 96/ C 95/24 )
                                                                       The Commission claims that the Court should :
Reference has been made to the Court of Justice of the
European Communities by order of the Beslagrechter ( judge             1 . declare that, by failing to adopt the national measures
hearing attachment proceedings ) of the Rechtbank van                      necessary to ensure that officials of the Community