CELEX: C2000/233/22
Language: en
Date: 2000-08-12 00:00:00
Title: Case C-142/00 P: Appeal brought on 14 April 2000 by the Commission of the European Communities against the judgment delivered on 10 February 2000 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-32/98 and T-41/98 between, on the one hand, the Government of the Netherlands Antilles and, on the other hand, the Commission of the European Communities, supported by the Kingdom of Spain

12.8.2000                EN                      Official Journal of the European Communities                                      C 233/11
1.    Article 2 of the First Council Directive 67/227/EEC of                anwalt, Cologne, with an address for service in Luxembourg at
      11 April 1967 on the harmonisation of legislation of Member           the Chambers of Loesch and Wolter, 11 Rue Goethe — Appeal
      States concerning turnover taxes and Article 17(2), (3) and (5)       against the judgment of the Court of First Instance of the
      of the Sixth Council Directive 77/388/EEC of 17 May 1977              European Communities (Third Chamber, Extended Composi-
      on the harmonisation of the laws of the Member States relating        tion) of 16 September 1998 in Cases T-133/95 and T-204/95
      to turnover taxes — Common system of value added tax:                 IECC v Commission [1998] ECR II-3645, seeking to have that
      uniform basis of assessment must be interpreted as meaning            judgment set aside, the other parties to the proceedings being:
      that, in principle, the existence of a direct and immediate link      International Express Carriers Conference (IECC), established
      between a particular input transaction and a particular output        in Geneva, Switzerland, represented by E. Morgan de Rivery,
      transaction or transactions giving rise to entitlement to deduct      of the Paris Bar, and J. Derenne and M. Cunningham, of the
      is necessary before the taxable person is entitled to deduct input    Brussels Bar, with an address for service in Luxembourg at the
      value added tax and in order to determine the extent of such          Chambers of A. Schmitt, 7 Val Sainte-Croix, Commission of
      entitlement.                                                          the European Communities (Agent: K. Wiedner, assisted by N.
                                                                            Forwood), La Poste, represented by H. Lehman, of the Paris
2.    It is for the national court to apply the ‘direct and immediate       Bar, with an address for service in Luxembourg at the
      link’ test to the facts of each case before it. A taxable person      Chambers of A. May, 398 Route d’Esch, United Kingdom of
      who makes transactions in respect of which value added tax is         Great Britain and Northern Ireland, and The Post Office —
      deductible and transactions in respect of which it is not may         The Court (Fourth Chamber), composed of: D.A.O. Edward,
      deduct the value added tax in respect of the goods or services        President of the Chamber, P.J.G. Kapteyn (Rapporteur) and A.
      acquired by him, provided that such goods or services have a          La Pergola, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
      direct and immediate link with the output transactions in             R. Grass, Registrar, has made an order on 11 May 2000, the
      respect of which value added tax is deductible, without it being      operative part of which is as follows:
      necessary to take into account Article 17(2), (3) or (5) of the
      Sixth Directive 77/388. However, such a taxable person                1.    The appeal is dismissed.
      cannot deduct in its entirety the value added tax charged on
      input services where they have been utilised not for the purpose      2.    Deutsche Post AG shall pay the costs.
      of carrying out a deductible transaction but in the context of
      activities which are no more than the consequence of making           3.    International Express Carriers Conference and La Poste shall
      such a transaction, unless that person can show by means of                 bear their own costs.
      objective evidence that the expenditure involved in the acquisition
      of such services is part of the various cost components of the
      output transaction.                                                   (1) OJ C 48 of 20.2.1999.
(1) OJ C 166 of 30.5.1998.
                                                                            Appeal brought on 14 April 2000 by the Commission of
                                                                            the European Communities against the judgment delive-
                                                                            red on 10 February 2000 by the Third Chamber of the
                      ORDER OF THE COURT                                    Court of First Instance of the European Communities in
                                                                            Joined Cases T-32/98 and T-41/98 between, on the one
                          (Fourth Chamber)                                  hand, the Government of the Netherlands Antilles and,
                                                                            on the other hand, the Commission of the European
                                                                                Communities, supported by the Kingdom of Spain
                           of 11 May 2000
                                                                                                    (Case C-142/00 P)
in Case C-428/9 P: Deutsche Post AG v International
Express Carriers Conference (IECC), Commission of the
European Communities, La Poste, United Kingdom of                                                    (2000/C 233/22)
Great Britain and Northern Ireland and The Post Office (1)
                                                                            An appeal against the judgment delivered on 10 February
(Appeal — Competition — Abuse of a dominant position —                      2000 by the Third Chamber of the Court of First Instance of
                      Postal services — Remail)                             the European Communities in Joined Cases T-32/98 and
                                                                            T-41/98 between, on the one hand, the Government of the
                                                                            Netherlands Antilles and, on the other hand, the Commission
                           (2000/C 233/21)                                  of the European Communities, supported by the Kingdom of
                                                                            Spain, was brought before the Court of Justice of the European
                                                                            Communities on 14 April 2000 by the Commission of the
                     (Language of the case: English)                        European Communities, represented by T. van Rijn, Legal
                                                                            Adviser, of the Commission’s Legal Service, with an address
In Case C-428/98 P: Deutsche Post AG, having its registered                 for service in Luxembourg at the office of C. Gómez de la
office in Bonn, Germany, represented by D. Schroeder, Rechts-               Cruz, of its Legal Service.
 ---pagebreak--- C 233/12               EN                     Official Journal of the European Communities                                      12.8.2000
The appellant claims that the Court should:                                    follows that the Court of First Instance should have held
                                                                               that the regulations at issue were not of concern to the
—     set aside the judgment delivered on 10 February 2000 by                  Netherlands Antilles within the meaning of the fourth
      the Court of First Instance in Joined Cases T-32/98 and                  paragraph of Article 230 EC.
      T-41/98;
                                                                         —     Infringement of the law, in that the Court of First Instance
—     determining the case itself, declare the applications for                held that Regulations Nos 2352/97 and 2494/97 were of
      annulment of Regulations Nos 2352/97 (1) and                             direct concern to the Government of the Netherlands
      2494/97 (2) inadmissible;                                                Antilles: the consequences of those regulations for the
                                                                               Netherlands Antilles manifested themselves exclusively in
—     alternatively, refer the case back to the Court of First                 the socio-economic sphere, in that employment opportu-
      Instance;                                                                nities in the rice sector were potentially threatened and
                                                                               the island region stood to lose revenue from various types
—     order the applicant in the proceedings at first instance to              of taxes.
      pay the costs, including the costs of the proceedings at
      first instance.                                                    —     Infringement of the law, in that the Court of First Instance
                                                                               held that the Commission, in adopting Regulation
                                                                               No 2532/97, committed an error of law: by omitting, in
Pleas in law and main arguments                                                its assessment of the reasons for Regulation No 2352/97,
                                                                               to have regard to the detailed reasons given for the
—     Infringement of the law, in that the Court of First Instance             import-restricting measures contained in Regulation
      held that Regulations Nos 2352/97 and 2494/97 were of                    No 2494/97, despite the fact that such an assessment
      individual concern to the Government of the Netherlands                  undoubtedly involves consideration of the consequences
      Antilles: the contested measures of the Commission are                   of Regulation No 2494/97, the Court of First Instance
      applicable to imports from all OCTs and not solely to                    infringed the law. The two regulations form a whole,
      those from the Netherlands Antilles.                                     with the first of them, namely Regulation No 2532/97,
                                                                               constituting merely a vehicle for the practical application
      In the event that the Court of Justice rules that Artic-                 of Article 109 of the OCT decision by means of the
      le 109(2) of the OCT decision must be interpreted as                     second regulation.
      meaning that a regulation applicable to all OCTs is of
      individual concern to each OCT, that will necessarily
      mean that the OCTs are given a right of action comparable          (1) OJ 1997 L 326, p. 21.
                                                                         (2) OJ 1997 L 343, p. 17.
      with that conferred on Member States under the second
      paragraph of Article 230 EC. In that event, the concept
      of a measure being ‘of individual concern’ will to that
      extent be rendered effectively meaningless. The fact that
      an OCT accounts for the majority of imports into
      the Community does not by definition mean that the
      economy of that OCT is affected more than that of                  Reference for a preliminary ruling by the High Court of
      another OCT. The Court of First Instance committed an              Justice (England & Wales), Chancery Division, by order
      error of reasoning inasmuch as it accepted that criterion          of that court of 7 March 2000, in the cases of Boehringer
      for the purposes of assessing whether the negative                 Ingelheim AG and Boehringer Ingelheim Pharma AG
      consequences of the regulations in issue made themselves           against Swingward Ltd, Boehringer Ingelheim AG and
      felt primarily in the territory of the Netherlands Antilles.       Boehringer Ingelheim Pharma AG against Dowelhurst
                                                                         Ltd, Glaxo Group Ltd against Swingward Ltd, Boehringer
—     Infringement of the law, in that the Court of First Instance
                                                                         Ingelheim AG and Boehringer Ingelheim Pharma AG
      held that the Government of the Netherlands Antilles had
                                                                         against Dowelhurst Ltd, Glaxo Group Ltd against Dowel-
      an interest in bringing proceedings: the subject-matter of
                                                                         hurst Ltd, SmithKline Beecham plc, Beecham Group
      the dispute (namely, the trading regime between the
                                                                         plc and SmithKline & French Laboratories Ltd against
      Community and the OCTs) falls within the competence
                                                                         Dowelhurst Ltd and Eli Lilly & Company against Dowel-
      of the Kingdom of the Netherlands. The Netherlands
                                                                                                     hurst Ltd
      Antilles, as an autonomous entity, cannot independently
      bring an action in this matter. Consequently, it was for
      the Kingdom of the Netherlands to determine whether an                                      (Case C-143/00)
      action should be brought for annulment of the regulations
      concerned. The Netherlands Antilles does not have the                                       (2000/C 233/23)
      right to do so.
                                                                         Reference has been made to the Court of Justice of the
      Nor can there be any question of any measures adopted              European Communities by an order of the High Court of
      by the Netherlands Antilles having been divested of their          Justice (England & Wales), Chancery Division, of 7 March
      legal consequences as a result of the regulations at issue.        2000, which was received at the Court Registry on 17 April
      In the present case, the Netherlands Antilles brought an           2000, for a preliminary ruling in the cases of Boehringer
      action for annulment of regulations which affect the               Ingelheim AG and Boehringer Ingelheim Pharma AG against
      economic position of specific undertakings and, consequ-           Swingward Ltd, Boehringer Ingelheim AG and Boehringer
      ently, employment opportunities within its territory. It           Ingelheim Pharma AG against Dowelhurst Ltd, Glaxo Group