CELEX: C1998/209/42
Language: en
Date: 1998-07-04 00:00:00
Title: Appeal brought on 17 April 1998 by Pharos SA against the judgment delivered on 17 February 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-105/96 between Pharos SA and Commission of the European Communities (Case C-151/98 P)

4.7.98              EN                   Official Journal of the European Communities                                   C 209/21
Granollers A.I.E. (Rec. 08/3276/96 and 08/3277/96),                 E and the Economic and Social Committee was brought
(C-131/98) Alfonso Crespo Recasens (Rec. 08/1826/96),               before the Court of Justice of the European Communities
(C-132/98) JesuÂs Corral García (Rec. 08/11628/95),                 on 17 April 1998 by the Economic and Social Committee,
(C-133/98) Atlansport, S.L. (Rec. 2.181/96), (C-134/98)             represented by MoiseÂs Bermejo Garde, acting as Agent,
Golden Meetings, S.A. (Rec. 08/2328/97) (C-135/98)                  with an address for service in Luxembourg at the office of
Algavame, S.A. (Rec. 08/2249/97), (C-136/98) Tarragona              Carlos GomeÂz de la Cruz, Commission of the European
161. S.A. (Rec. 08/994/97), (C-137/98) Gesba, S.A. (Rec.            Communities, Wagner Centre.
08/940/97), (C-138/98) Estació de Servei El Trevol S.L.
(Rec. 08/805/97), (C-139/98) Viladases, S.L. (Rec. 08/              The appellant claims that the Court should:
12845/96), (C-140/98) Francisca Quesada Cobo (Rec. 08/
7575/94), (C-141/98) Niteo, S.L. (Rec. 25/1110/96),                 Ð    set aside the judgment delivered by the Court of First
(C-142/98) Inmobiliaria Vilassarenca, S.A. (Rec. 08/2365/                Instance on 17 February 1998 in Case T-183/96 (1),
97), (C-143/98) Covives CB (Rec. 43/530/96), (C-144/98)
Cable I Televisión de Catalunya, S.A. (Rec. 10.349/96),             Ð    itself definitively determine the dispute by:
(C-145/98) Inmobiliaria Moragas, S.A. (Rec. 10.348/96),
(C-146/98) Comunidad de propietarios del Complejo                        Ð upholding the submissions advanced by the
Urbanístico de las Calles Estudiantes, Brosa y Casas i                        Economic and Social Committee in the
Amigo de Barcelona (Rec. 15.158/94), of 30 January 1998                       proceedings at first instance contending that E's
in the cases of (C-121/98) Sanyo Energy Spain Corporate,                      application should be dismissed in its entirety,
S.A. (Rec. 08/762/97), (C-122/98) Golf de Viladecans,
S.A. (Rec. ac. 08/3301/97 and 08/3302/97), (C-123/98)                    Ð ordering the parties to bear their own costs.
Savigi    89,    S.A.    (Rec.     08/665/97),     (C-124/98)
Explotaciones la Sota, S.L. (Rec. 08/960/97) and (C-147/            Pleas in law and main arguments adduced in support:
98) Bungy Fun Germany, GBDR (Rec. 43/1047/95), and
of 25 February 1998 in the cases of (C-116/98) Gran Vía             Erroneous assessment of the legal nature of the facts and
Zaragoza, S.A. (Rec. ac. 08/10942/96 and 08/11959/96),              misinterpretation of Articles 12 and 21 of the Staff
(C-118/98) Gran Vía Zaragoza, S.A. (Rec. ac. 08/10944/              Regulations of officials of the European Communities: in
96 and 08/11961/96) and (C-119/98) Gran Vía Zaragoza,               the Economic and Social Committee's view, the words
S.A. (Rec. ac. 08/10943 y 08/11960) v. Administración               used by E, and the tone in which they were expressed, as
Estatal de la Agencia Tributaria, on the following                  sanctioned in the contested decision, cannot be
question:                                                           characterised in law as merely discourteous Ð as they
                                                                    were by the Court of First Instance Ð but must be
With respect to the VAT paid by a taxable person liable             regarded as an extremely serious act amounting to a
thereto before he starts regularly carrying out taxable             failure to respect the law applicable to the public service.
transactions, may the terms in which the right to deduct
VAT is defined in Article 17 of the Sixth Council Directive         Failure to state the grounds of the judgment and
77/388/EEC of 17 May 1977 be interpreted as meaning                 misinterpretation of Articles 86 and 87 of the Staff
that the exercise of that right may be made conditional,            Regulations of officials: the finding by the Court of First
with a view to avoiding fraud, upon the fulfilment of               Instance that the disciplinary measure was manifestly
certain requirements such as the submission of an express           disproportionate was based solely on the actual conduct
request before the tax concerned becomes due and                    specifically complained of, and failed to take account of
commencement of taxable transactions on a regular basis             the other circumstances of the case, that is to say, it failed
within a specified time-limit reckoned from the date of             to attach any weight in the proceedings to the other
that request, the penalty for infringement of those                 circumstances prevailing.
requirements being forfeiture of the right to deduct or, at
least, deferment of its availability until the time at which        Incorrect application of the principle of proportionality
taxable transactions begin to be carried out on a regular           and misinterpretation of Articles 12 and 21 of the Staff
basis?                                                              Regulations of officials.
                                                                    (1) OJ C 94, 28.3.1998, p. 22.
Appeal brought on 17 April 1998 by the Economic and
Social Committee against the judgment delivered on
17 February 1998 by the Third Chamber of the Court of               Appeal brought on 17 April 1998 by Pharos SA against
First Instance of the European Communities in Case                  the judgment delivered on 17 February 1998 by the Third
T-183/96 between E and the Economic and Social                      Chamber of the Court of First Instance of the European
                         Committee                                  Communities in Case T-105/96 between Pharos SA and
                     (Case C-150/98 P)                                       Commission of the European Communities
                                                                                           (Case C-151/98 P)
                       (98/C 209/41)
                                                                                             (98/C 209/42)
An appeal against the judgment delivered on 17 February
1998 by the Third Chamber of the Court of First Instance            An appeal against the judgment delivered on 17 February
of the European Communities in Case T-183/96 between                1998 by the Third Chamber of the Court of First Instance
 ---pagebreak--- C 209/22               EN                 Official Journal of the European Communities                                      4.7.98
of the European Communities in Case T-105/96 between                 Ð the finding of the Court of First Instance that the
Pharos SA and Commission of the European Communities                     Commission was entitled to seek a further opinion
was brought before the Court of Justice of the European                  from the Committee for Veterinary Medicinal
Communities on 17 April 1998 by Pharos SA, represented                   Products: the procedure provided for by Articles 6 and
by Alexandre Vandencasteele, of the Brussels Bar, with an                8 of the regulation is clear, precise and unconditional.
address for service in Luxembourg at the Chambers of                     It examines all possible situations exhaustively and
Ernest Arendt, 8Ð10 Rue Mathias Hardt.                                   leaves the Commission no room to act otherwise than
                                                                         as laid down by the regulation.
The appellant claims that the Court should:
                                                                     (1) OJ L 224, 18.8.1990, p. 1.
Ð set aside the judgment of the Third Chamber of the
    Court of First Instance of the European Communities
    of 17 February 1998 in Case T-105/96 between Pharos
    SA and the Commission of the European
    Communities;                                                     Reference for a preliminary ruling by the Hoge Raad der
                                                                     Nederlanden of 22 April 1998 in the case of
                                                                     Staatssecretaris van FinancieÈn against V.O.F. Coffeeshop
and
                                                                                                 SiberieÈ'
                                                                                             (Case C-158/98)
Ð declare that the case should proceed to judgment and
    give judgment for the applicant in the terms sought by                                    (98/C 209/43)
    it at first instance, that is to say:
                                                                     Reference has been made to the Court of Justice of the
    Ð declare that, in breach of its obligations, the                European Communities by judgment of the Hoge Raad
         Commission failed to pursue the procedure for the           der Nederlanden (Supreme Court of the Netherlands) of
         inclusion of somatosalm produced by the applicant           22 April 1998, received at the Court Registry on 24 April
         in the list of substances not subject to an MRL in          1998, for a preliminary ruling in the case of
         Annex II of Regulation (EEC) No 2377/90 (1),                Staatssecretaris van FinancieÈn against V.O.F. Coffeeshop
                                                                     SiberieÈ', on the following question:
    Ð order the Commission to pay the applicant
         damages provisionally estimated at BFR 512                  Must Article 2 of the Sixth Directive (77/388/EEC) (1)
         million or, at least, and again provisionally, at BFR       therefore be interpreted as meaning that no liability to
         353 million,                                                turnover tax arises in respect of a person who, for
                                                                     consideration, offers another person the opportunity to
    Ð order the defendant to pay the costs both of the               deal in cannabis products?
         proceedings before the Court of First Instance and
         of those before the Court of Justice;                       (1) OJ L 145, 13.6.1977, p. 1.
or
    Ð refer the case back to the Court of First Instance
         so that it can give judgment.                               Reference for a preliminary ruling by the Ufficio del
                                                                     Giudice di Pace di Genova, by order of that court of
Pleas in law and main arguments adduced in support:                  28 March 1998 in the case of Eridania SpA against
                                                                                       Azienda Agricola San Luca
                                                                                             (Case C-160/98)
Errors in law as regards
                                                                                              (98/C 209/44)
Ð the finding of the Court of First Instance that the
    Commission did not breach the principles of legal                Reference has been made to the Court of Justice of the
    certainty and legitimate expectations in not proposing           European Communities by order of 28 March 1998 of the
    measures to the Council as required by Article 8(3)(b)           Ufficio del Giudice di Pace di Genova, received at the
    of Council Regulation (EEC) No 2377/90 for 11                    Court Registry on 22 April 1998, for a preliminary ruling
    months because the expression without delay' used in            in the case of Eridania SpA v. Azienda Agricola San Luca
    that regulation allowed it a certain margin for                 on the following questions:
    manoeuvre': both the expressions used in the various
    language versions and the general scheme of the                  1. Is Regulation (EC) No 1188/97 of 25 June 1997 (1), in
    regulation support the view that the Commission has                  particular Article 1(f) thereof, valid, especially in the
    no deadline by which it must propose measures to the                 light of Article 3(4) and (5) of Regulation (EEC)
    Council regarding a new pharmacologically active                     No 1785/81 (2) and Article 190 of the EC Treaty?
    substance which, as such, does not benefit from the
    provisional authorisation provided for in Article 14 of          2. If the answer to the first question is in the affirmative,
    the regulation,                                                      is Regulation (EEC) No 1785/81 of 30 June 1981, as