CELEX: C1998/055/31
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 5 December 1997 by the Commission of the European Communities against the Kingdom of Belgium (Case C-411/97)

C 55/16               EN                 Official Journal of the European Communities                                  20.2.98
Communities on 4 December 1997 by the Commission of                 Action brought on 5 December 1997 by the Commission
the European Communities, represented by B. J. Drijber              of the European Communities against the Grand Duchy of
and H. Michard, of its Legal Service, acting as Agents,                                       Luxembourg
with an address for service in Luxembourg at the office of
                                                                                           (Case C-410/97)
C. Gómez de la Cruz, of its Legal Service, Wagner Centre.
                                                                                              (98/C 55/30)
The Commission claims that the Court should:
                                                                    An action against the Grand Duchy of Luxembourg was
                                                                    brought before the Court of Justice of the European
Ð declare that, by not charging value added tax on tolls            Communities on 5 December 1997 by the Commission of
     for the use of highway infrastructures, contrary to            the European Communities, represented by Marie
     Articles 2 and 4 of the Sixth VAT Directive (77/388/           Wolfcarius, of its Legal Service, acting as Agent, with an
     EEC) of 17 May 1977 (1) the Kingdom of the                     address for service in Luxembourg at the office of Carlos
     Netherlands has failed to fulfil its obligations under         Gómez de la Cruz, of its Legal Service, Wagner Centre,
     the EC Treaty, and                                             Kirchberg.
                                                                    The applicant claims that the Court should:
Ð order the Kingdom of Netherlands to pay the costs.
                                                                    Ð declare that, by failing to adopt the laws, regulations
Pleas in law and main arguments adduced in support:                      or administrative provisions necessary to comply with
                                                                         Council Directive 92/29/EEC of 31 March 1992 on
                                                                         the minimum safety and health requirements for
The Commission Ð like the Netherlands Government Ð                       improved medical treatment on board vessels (1), the
takes the view that the tolls charged in the Netherlands                 Grand Duchy of Luxembourg has failed to fulfil its
constitute consideration for the supply of a service within              obligations under that Directive,
the meaning of Article 2(1) of the Sixth Directive.
However, the Netherlands Government wrongly considers
that the bodies governed by public law charged with the             Ð order the Grand Duchy of Luxembourg to pay the
operation of facilities for which a toll is levied are acting            costs.
in that regard as public authorities within the meaning of
the exception in Article 4(5) of the Sixth Directive. In the
first place, a body governed by public law is taxable as a          Pleas in law and main arguments adduced in support:
general rule and exemption is an exception to that rule.
The first subparagraph of Article 4(5) constitutes an
exception to Article 4(1) and (2). The fact that the second         The pleas in law and main arguments are analogous with
and third subparagraphs of Article 4(5) constitute                  those relied upon in Case C-406/97 (2); the time-limit for
exceptions, in turn, to the first subparagraph does not             transposition expired on 31 December 1994.
detract from the exceptional nature of that first
subparagraph; on the contrary, it confirms that it provides         (1) OJ L 113, 30.4.1992, p. 19.
for a systematic exception. In the Netherlands                      (2) OJ C 41, 7.2.1998, p. 11.
Government's argument, the rule and the exception
appear to be reserved. The fact that exemption constitutes
an exception is further confirmed by the fact that there
would have been no need for the exemptions under, in
particular, Articles 13 and 28 of the Sixth Directive if
bodies governed by public law had not been subject to the
VAT system. Any other interpretation would run counter              Action brought on 5 December 1997 by the Commission
to the general character of the Community VAT system.               of the European Communities against the Kingdom of
The charging of tolls is not inherent in the exercise of                                        Belgium
public authority, which includes the construction, making
available and maintenance of certain infrastructures such                                  (Case C-411/97)
as tunnels and bridges, but a separate activity forming
                                                                                              (98/C 55/31)
part of the operation thereof. There is no reason why
there should be no question of acting as a public authority
in relation to supplies of gas etc. whilst such should be the
case as regards the operation of bridges and tunnels.               An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 5 December 1997 by the Commission of the European
(1) OJ L 145, 13.6.1977, p. 1.                                      Communities, represented by Marie Wolfcarius, of its
                                                                    Legal Service, acting as Agent, with an address for service
                                                                    in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                    of its Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- 20.2.98               EN                Official Journal of the European Communities                                    C 55/17
The applicant claims that the Court should:                             (a) In regard to the building and demolition waste
                                                                             from which the chips are produced, operations
                                                                             are carried out already at an earlier stage than
Ð declare that, by failing to adopt the laws, regulations                    burning which are to be regarded as a discarding
    or administrative provisions necessary to comply with                    of the waste, namely operations (recycling
    Council Directive 92/29/EEC of 31 March 1992 on                          operations) to render the waste suitable for reuse
    the minimum safety and health requirements for                           (use as a fuel)?
    improved medical treatment on board vessels (1), the
    Grand Duchy of Luxembourg has failed to fulfil its
                                                                             If so, is an operation to render waste suitable for
    obligations under that Directive,
                                                                             reuse (recycling operation) to be regarded as an
                                                                             operation for recovery of waste only if that
                                                                             operation is expressly mentioned in Annex II B of
Ð order the Kingdom of Belgium to pay the costs.                             Directive 75/442/EEC, or also if that operation is
                                                                             analogous to an operation mentioned in
                                                                             Annex II B?
Pleas in law and main arguments adduced in support:
                                                                        (b) Wood chips constitute waste under contemporary
The pleas in law and main arguments are analogous with                       thinking whereby it is of particular relevance
those relied upon in Case C-406/97 (2); the time-limit for                   whether they may be recovered in an
transposition expired on 31 December 1994.                                   environmentally responsible manner for use as
                                                                             fuel without further processing?
(1) OJ L 113, 30.4.1992, p. 19.
(2) OJ C 41, 7.2.1998, p. 11.                                           (c)  The use of wood chips as a fuel is comparable
                                                                             with an accepted method of waste recovery?
                                                                   (1) OJ L 194, 25.7.1975, p. 39.
Reference for a preliminary ruling from the Netherlands
Raad van State by order of that court of 25 November
1997 in the case of Vereniging Dorpsbelang Hees,
Stichting    Werkgroep Weurt, Vereniging Stedelijk                 Appeal brought on 12 December 1997 by SocieÂteÂ
Leefmilieu Nijmegen v. Director of the Environmental and           anonyme des traverses en beÂton armeÂ (SATEBA) against
           Water Services Department, Gelderland                   the order made on 29 September 1997 by the First
                       (Case C-419/97)                             Chamber of the Court of First Instance of the European
                                                                   Communities in Case T-83/97 between SocieÂteÂ anonyme
                          (98/C 55/32)                             de traverses en beÂton armeÂ (SATEBA) and the
                                                                            Commission of the European Communities
                                                                                          (Case C-422/97 P)
Reference has been made to the Court of Justice of the
European Communities by order of the Netherlands Raad                                        (98/C 55/33)
van State (Council of State) of 25 November 1997,
received at the Court Registry on 11 December 1997, for
a preliminary ruling in the case of Vereniging Dorpsbelang         An appeal against the order made on 29 September 1997
Hees, Stichting Werkgroep Weurt, Vereniging Stedelijk              by the First Chamber of the Court of First Instance of the
Leefmilieu Nijmegen v. Director of the Environmental and           European Communities in Case T-83/97 between SocieÂteÂ
Water Services Department, Gelderland, on the following            anonyme de traverses en beÂton armeÂ (SATEBA) and the
questions:                                                         Commission of the European Communities was brought
                                                                   before the Court of Justice of the European Communities
                                                                   on 12 December 1997 by SocieÂteÂ anonyme de traverses en
1. May it be inferred from the mere fact that wood chips           beÂton armeÂ (SATEBA), represented by Jacques Manseau,
    undergo an operation listed in Annex II B to Directive         of the Paris Bar, with an address for service in
    75/442/EEC (1) that that substance has been discarded          Luxembourg at the Chambers of Ernest Arendt, 8-10 rue
    so as to enable it to be regarded as waste for the             Mathias Hardt.
    purposes of Directive 75/442/EEC?
                                                                   The appellant claims that the Court should set aside the
2. If Question 1 is to be answered in the negative, does           order of the Court of First Instance of 29 September 1997
    the reply to the question whether the use of wood              in Case T-83/97 (1) on the grounds of (i) erroneous
    chips as a fuel is to be regarded as constituting              interpretation of the provisions of the EC Treaty and, in
    discarding depend on whether:                                  particular, Articles 155, 169 and 86 thereof and of