CELEX: C1997/040/23
Language: en
Date: 1997-02-08 00:00:00
Title: Reference for a preliminary ruling by the Rechtbank van Eerste Aanleg te Brussel by judgment of that court of 26 November 1996 in the case of Lease Plan Luxembourg SA v. Belgian State (Case C-390/96)

8 . 2 . 97            ! EN |                Official Journal of the European Communities                                  No C 40/ 11
Justice of the European Communities on 28 November                     with regard to the validity, interpretation or application of
1996 by Dreyfus & Cie, represented by R. Saint-Esteben,                the present contract', which , according to Article 14
with an address for service in Euxembourg at the                       thereof, ' shall be governed by French law '.
Chambers of A. May, 31 Grand Rue.
                                                                       (') Two buildings on Orsay, rented for multiple residential
The appellant claims that the Court should set aside in                    occupation , comprising 15 four-room units of 80 m2, each
part the judgment of the Court of First Instance of                        fitted with a Glasoltherm thermoelectric micro-heating plant
24 September 1996 in so far as it declared inadmissible                    enabling tests to be carried out on two Glasoltherm heat
the action for annulment brought by Louis Dreyfus                          pump designs which have functioned for 10 years in rhe
                                                                           context of a Z.A.I , demonstration lease in Courtaboeuf les
against the decision of the Commission of 1 April 1993 .                   LJlis .
Pleas in law and main arguments adduced in support:
— Infringement of the fourth paragraph of Article 173 of
      the EC Treaty: the judgment is too restrictive
      inasmuch as it considers that, in the absence of a legal         Reference for a preliminary ruling by the Rechtbank van
      relationship with the Commission , Louis Dreyfus                 Eerste Aanleg te Brussel by judgment of that court of
      cannot be directly concerned, since neither the validity         26 November 1996 in the case of Lease Plan Luxembourg
      nor the terms of the contract are affected . The legal                                  SA v. Belgian State
      and substantive situation of the applicant was in fact
                                                                                               ( Case C-390/96 )
      directly affected by the contested decision : the contract
      was already concluded between Louis Dreyfus and                                             ( 97/C 40/23 )
      Exportkhleb and payment of the price was to be by
      means of the Community loan . It was because of the              Reference has been made to the Court of Justice of the
      contract and its terms ( and not because of a ' decision '       European Communities by a judgment of the Rechtbank
      taken by the Russians ) that Louis Dreyfus could no              van Eerste Aanleg te Brussel ( Court of First Instance ,
      longer be paid at the new price, since the contract and          Brussels ) of 26 November 1996 , which was received at the
      the rider inextricably linked payment to the                     Court Registry on 2 December 1996 , for a preliminary
       Community loan .                                                ruling in the case of Lease Plan Luxembourg SA v. Belgian
                                                                       State on the following questions :
— Contradictory grounds .
                                                                       1 . Must the term ' fixed establishment' in Article 9 ( 1 ) of
                                                                            the Sixth VAT Directive ( Directive 77/388/EEC ) (') be
                                                                            interpreted as meaning that an undertaking from one
                                                                            Member State which hires or leases out a number of
                                                                            cars to customers established in another Member State
Action brought on 22 November 1996 by Glasoltherm                           has ipso facto, by virtue of that hiring, a fixed
Sari against the Commission of the European                                 establishment in that other Member State ?
                            Communities
                         ( Case C-388/96 )                             2 . If the answer to the preceding question is in the
                                                                            affirmative : must Article 9 ( 1 ) of the Sixth VAT
                            ( 97/C 40/22 )                                  Directive be interpreted as meaning that services
                                                                            consisting in the leasing out of vehicles can be
An action against the Commission of the European                            regarded as being supplied from a fixed establishment
Communities was brought before the Court of Justice of                      in Belgium in the case where the supplier of the
the European Communities on 22 November 1996 by                             services has its established place of business in
Glasoltherm Sari, represented by Mr Penciolelli , lawyer, of                Luxembourg and where almost all contracts are
18 Avenue de la Liberation , 91130 Ris Orangis ( France ).                  negotiated and concluded from this place of
                                                                            establishment in Luxembourg with customers
Glasoltherm Sari claims that the Court should order the                     established in Luxembourg and only a limited number
Commission of the European Communities to support by                        of vehicles ( approximately ten cars out of a fleet of
all means, including the provision of financial assistance,                 almost 1 000 vehicles ) are purchased in Belgium and
over a period of 10 years from the date of entry into                       maintained or repaired within Belgium ?
industrial service of the two demonstration operations
referred to ('), the action taken by a commercial company              3 . Must Articles 6 and 59 of the EEC Treaty be
formed by Glasoltherm Sari to market Glasoltherm                             interpreted as meaning that foreign taxable persons,
thermoelectric micro-heating technology in the European                     who receive goods or services in Belgium and
Community.                                                                   subseqently request VAT refunds in respect of such
                                                                            goods or services pursuant to the Eighth VAT
Pleas in law and main arguments adduced in support:                          Directive , cannot, in the event of late reimbursement,
                                                                             be granted a lower rate of interest, which , moreover,
The      action  is  founded     on  contract  No    EE   252/ 84            begins to accrue only from the moment at which such
concluded between the parties on 28 October 1986 .                           foreign taxable persons institute default proceedings
According to Article 13 of that contract, 'the contracting                   against the Belgian State, whereas in the event of late
parties agree to submit to the jurisdiction of the Court of                  reimbursement to Belgian taxable persons, the latter
Justice of the European Communities all disputes arising                     are granted a higher rate of interest which ,
 ---pagebreak--- No C 40/ 12            1 EN                   Official Journal of the European Communities                                          8 . 2 . 97
      automatically and without the institution of default               The applicant claims that the Court should :
     proceedings, begins to accrue as soon as the statutory
      time-limit for reimbursement has expired ?
                                                                         — declare that, by failing to adopt all the necessary
                                                                               measures to ensure the correct transposition of
(') OJ No L 145 , 13 . 6 . 1977, p . 2 .                                       Council Directive 85/337/EEC (') of 27 June 1985 on
                                                                               the assessment of the effects of certain public and
                                                                               private projects on the environment, Ireland has failed
                                                                               to fulfil its obligations under that Directive and in
                                                                               particular Article 12 thereof and under the Treaty,
Appeal brought on 4 December 1996 by Compagnie
                                                                         — order Ireland to pay the costs .
Continentale (France) against the judgment delivered on
24 September 1996 by the Third Chamber of the Court of
First Instance of the European Communities in Case T­                    Pleas in law and main arguments adduced in support:
494/93 between Compagnie Continentale (France ) and the
          Commission of the European Communities
                                                                         Article 4 (2) of the Directive and Annex II
                         ( Case C-391 /96 P
                              ( 97/C 40/24 )                             In establishing criteria/thresholds for determining whether
                                                                         or not an environmental impact assessment ('EIA') is
An appeal against the judgment delivered on 24 September                 required for an individual project in project classes
                                                                         Annex II . 1 ( b ) ('projects for the use of uncultivated land
1996 by the Third Chamber of the Court of First Instance
                                                                         or semi-natural areas for intensive agriculture'), Annex
of the European Communities in Case T-494/93 between
                                                                         II . 2 ( a ) (' extration of peat') and Annex II . 1 ( d ) (' initial
Compagnie Continentale ( France ) and the Commission of
the European Communities was brought before the Court                    afforestation where this may lead to adverse ecological
                                                                         changes and land reclamation for the purposes of
of Justice of the European Communities on 4 December
                                                                         conversion to another type of land use '), there is a
1996 by Compagnie Continentale ( France ), represented by
                                                                         particular need to ensure that areas of importance for
Patrick Chabrier, of 15 Rue Toepffer, Geneva .
                                                                         nature conservation are satisfactorily taken into account .
                                                                         The Commission would contend that, globally considered,
The appellant claims that the Court should :                             the Irish system of thresholds for these project classes does
                                                                         not satisfactorily take such areas into account for a
— set aside the judgment of 24 September 1996 declaring                  number of reasons .
      Compagnie Continentale's action for annullment of
      the Commission's decision of 1 April 1992                          First, the thresholds draw no distinction between areas
      inadmissible ,
                                                                         which have recognized importance and value for nature
                                                                         conservation and areas which do not .
— order the Commission to pay the costs .
                                                                         Second, the thresholds do not take account of the fact that
Pleas in law and main arguments adduced in support:                      areas of importance and value for nature conservation will
                                                                         often be relatively small in relation to the thresholds .
The pleas in law and main arguments are the same as
those in Case C-386/96 P (').
                                                                         Third, the thresholds do not take into account the absence
                                                                         in Ireland of other mechanisms which might obviate the
 (') See p. 10 of this Official Journal .                                need for an EIA .
                                                                         Fourth, the thresholds fail to take any or any adequate
                                                                          account of the fact that, incrementally or cumulatively,
                                                                         projects of these classes may create significant
                                                                         environmental effects .
Action brought on 5 December 1996 by the Commission
         of the European Communities against Ireland
                           ( Case C-392/96 )                              Article 2 (3): Exemptions
                               ( 97/C 40/25 )
                                                                          Irish legislation provides for an exemption formula
                                                                          entitling the Minister with powers under the relevant
 An action against Ireland was brought before the Court of                enactment to dispense with the requirement of an EIA
Justice of the European Communities on 5 December                         where he is satisfied that this is warranted by exceptional
 1996 by the Commission of the European Communities,                      circumstances . This exemption formula does not oblige
 represented by Mr Richard Wainwright, principal legal                    the Minister concerned to consider whether another form
 adviser, acting as Agent, with an address for service in                 of assessment would be appropriate and whether the
 Luxembourg at the office of Mr Carlos Gomez de la Cruz,                  information thus collected should be made available to the
 member of the Legal Service , Centre Wagner.                             public, as stipulated under Article 2 ( 3 ) ( a ) and ( b ) of the