CELEX: C2003/031/11
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-420/02: Action brought on 21 November 2002 by the Commission of the European Communities against the Hellenic Republic

8.2.2003              EN                        Official Journal of the European Union                                            C 31/7
Q ues ti o n 4                                                          how are Article 17 of the Directive and the rules on deduction
                                                                        to be interpreted? (With reference to paragraph e), if the law
                                                                        does not change in the way described the purchasing compani-
                                                                        es are entitled to terminate their contracts with the vendor
Does it make any difference to the answers to questions 1 to 3          companies and claim refunds of the prices paid. In the relevant
above if payment is made in respect of the relevant transactions        transactions the contracts between the purchasing companies
at a time when any onward supply of the goods would have                and the vendor companies contain provisions permitting such
been an exempt supply with refund of VAT at the preceding               terminations.)
stage as permitted by Article 28(2)(a) of the Directive?
                                                                        Qu est ion 7
Q ues ti o n 5
                                                                        The Tribunal found (at paragraph 89 of the Decision) that
                                                                        ‘none of the individuals in a position to take decisions for
How is the Directive to be interpreted with particular reference        [BMSL and Gatwick Park]... had any motive or purpose of
to the following questions? In circumstances such as the                substance other than to carry through the VAT avoidance
relevant circumstances and with reference to transactions such          scheme.’ The Appellants have, in their Notice of Appeal to the
as the relevant transactions:                                           High Court, challenged that finding of fact. If that finding of
                                                                        fact were to be set aside on appeal would it make any, and if
a)    should supplies be treated as having been made by the             so, what difference to the answers to questions 1 to 6 above
      outside suppliers to the purchasing companies with no             inclusive?
      supplies being made to or by the vendor companies? or
                                                                        (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
b)    should supplies be treated as having been made by the                  harmonization of the laws of the Member States relating to
      outside suppliers to the vendor companies with no                      turnover taxes — Common system of value added tax: uniform
      supplies being made by the vendor companies to the                     basis of assessment (OJ L 145, 13.06.77, p. 1).
      purchasing companies?
Q ues ti o n 6
                                                                        Action brought on 21 November 2002 by the
                                                                        Commission of the European Communities against the
In circumstances where each vendor company, in the course                                         Hellenic Republic
of an economic activity, makes supplies to a purchasing
company and:                                                                                       (Case C-420/02)
a)    the purchasing companies have entered into agreements                                         (2003/C 31/11)
      with the vendor companies to be supplied with goods;
b)    the goods are invoiced and paid for in advance of delivery;
                                                                        An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 21 No-
c)    VAT is charged on the advance payment in accordance               vember 2002 by the Commission of the European Communi-
      with the second sub-paragraph of Article 10(2) of the             ties, represented by Minas Konstantinidis, of its Legal Service.
      Directive;
                                                                        The Commission claims that the Court should:
d)    the goods are to be used by the purchasing companies in
      making supplies which, if made at the time of the
      payment, would have been exempt supplies with a right             —      declare that, by failing to adopt the necessary measures
      to refund at the preceding stage, but                                    to ensure that the disposal or recovery of waste will be
                                                                               carried out without endangering human health, without
                                                                               risk to water, air, soil, plants and animals and without
e)    each purchasing company intends to take delivery of the                  causing a nuisance through noise or odours, and by
      goods under the agreements only if the law changes in                    granting a permit which does not contain the necessary
      such a way that the purchasing company’s use of the                      information, the Hellenic Republic has failed to fulfil its
      goods will be a use in making exempt supplies without a                  obligations under Articles 4 and 9 of Directive 75/442/
      right of refund                                                          EEC (1) on waste as amended by Directive 91/156/EEC (2);
 ---pagebreak--- C 31/8                  EN                          Official Journal of the European Union                                            8.2.2003
—      order the Hellenic Republic to pay the costs.                        Pleas in law and main arguments
                                                                            1.    The Commission considers that the tax which is levied in
                                                                                  respect of the validation of invoices for the import of
Pleas in law and main arguments
                                                                                  pharmaceutical products that come from the Community
                                                                                  is contrary to Article 12 of the EC Treaty (now Article 25
1.     The Commission considers that the measures taken are
                                                                                  EC) and thus constitutes a charge having an effect
       not sufficient to ensure that the landfill site ‘Pera Galinon’
                                                                                  equivalent to that of customs duty.
       is operated in a manner which does not create risks to
       the natural and man-made environment and which is
       consistent with the obligations arising from Article 4 of            2.    The Commission observes that classification as a charge
       the directive.                                                             having equivalent effect does not depend on what the
                                                                                  charge is called or its amount.
2.     In the Commission’s view, the Hellenic Republic has
       exceeded the limits of the discretion conferred on it by             3.    None of the three exceptions preventing classification as
       Article 4 of the directive, since over a long period it has                a charge having equivalent effect applies.
       not taken effective action to avert pollution of the
       environment and to protect the health of inhabitants
                                                                            4.    Infringement of Article 133 of the EC Treaty.
       from the unlawful deposit of waste at the Pera Galinon
       site in the prefecture of Heraklion, Crete.
3.     The Commission observes that the landfill site in question
       operates without a permit which meets the conditions
       laid down in Article 9 of the directive.
( 1) OJ No L 194, 25.7.1975, p. 39.
( 2) OJ No L 78, 26.3.1991, p. 32.                                          Action brought on 3 December 2002 by the Commission
                                                                            of the European Communities against the Republic of
                                                                                                           Finland
                                                                                                     (Case C-437/02)
Action brought on 22 November 2002 by the                                                             (2003/C 31/13)
Commission of the European Communities against the
                         Hellenic Republic
                          (Case C-426/02)                                   An action against the Republic of Finland was brought
                                                                            before the Court of Justice of the European Communities on
                           (2003/C 31/12)                                   3 December 2002 by the Commission of the European
                                                                            Communities, represented by M. Huttunen and T. van Rijn,
                                                                            acting as Agents, with an address for service in Luxembourg.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 22 No-
                                                                            The Commission claims that the Court should
vember 2002 by the Commission of the European Communi-
ties, represented by Xavier Lewis and Minas Konstantinidis, of
its Legal Service.                                                          —     declare that
                                                                                  1.    by failing to enact appropriate detailed rules for the
The Commission claims that the Court should:                                            distribution and use of the fishing rights allocated to
                                                                                        it,
—      declare that by applying, for the benefit of the Ethniko
       Organismo Farmakon (National Organisation for Medi-
       cines), a charge in respect of the validation of invoices on               2.    and by failing to monitor compliance with the
       the import of raw materials for pharmaceutical use, semi-                        Community legislation on preservation by monitor-
       finished products and finished products from other                               ing fishing and related activities and by appropriate
       Member States or non-member countries, the Hellenic                              inspection of the fishing fleet and related activities,
       Republic has failed to fulfil its obligations under
       Articles 23, 25 and 133 of the Treaty establishing the                     3.    and by failing to prohibit provisionally fishing by
       European Community;                                                              vessels flying its flag or registered in its territory
                                                                                        when the quotas allocated to it were deemed to be
—      order the Hellenic Republic to pay the costs.                                    exhausted,