CELEX: C1997/357/38
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 2 October 1997 by the Federal Republic of Germany against the Council of the European Union (Case C-345/97)

22 . 11 . 97              EN                 Official Journal of the European Communities                                     C 357/21
      comply with Council Directive 90/220/EEC of 23 April              DM        Drogeriemarkt            GmbH,    and    Flic    Flac
       1990 on the deliberate release into the environment of           Kinderbekleidungs-Handelsgesellschaft           mbH     against
      genetically modified organisms ('), and Commission                Tiroler Landesregierung ( Government of Tirol ) on the
      Directive 94/5 1/EC of 7 November 1994 adapting to                following questions :
      technical progress Council Directive 90/219/EEC on
      the contained use of genetically modified micro­                  Is Article 33 ( 1 ) of the sixth Council Directive 77/388/
       organisms ( 2), the Kingdom of Belgium has failed to             EEC of 17 May 1977 on the harmonization of the laws of
       fulfil its obligations under those Directives,                   the Member States relating to turnover taxes — Common
                                                                        system of value added tax: uniform basis of assessment (')
                                                                        to be interpreted with regard to the description
— order the Kingdom of Belgium to pay the costs.                        'characterized as turnover taxes' as precluding the
                                                                        imposition on traders by a Member State of a tourism levy
                                                                        ( contribution ) which has the following features :
Pleas in law and main arguments adduced in support:
                                                                        — it is payable by traders with a direct or indirect
                                                                             interest in the tourist industry and therefore by a large
Pleas in law and main arguments correspond to those set                      number of, but not all, traders,
out in Case C-320/97 ('); the period prescribed for
transposition expired on 23 October 1991 ( Directive 90/
220/EEC) and 30 April 1995 (Directive 94/5 1 /EC ).                     — it goes to a local tourist association to finance the
                                                                             development of the tourist industry or to a fund to be
                                                                             used for the whole region ( Land),
(>) OJ L 117, 8 . 5 . 1990 , p . 15 .
( 2 ) OJ L 297, 18 . 11 . 1994, p . 29 .
(•') OJ C 331 , 1 . 11 . 1997, p. 13 .                                  — the basis of assessment is the yearly turnover with
                                                                             certain exceptions, in particular turnover related to
                                                                             services to customers whose place of residence (seat) is
                                                                             outside the area covered by the legislation, in so far as
                                                                             the services are not for a business situated within the
                                                                             area covered by the legislation (a Bundesland of a
                                                                             Member State composed of federal States ) and not
Reference for a preliminary ruling by the Verwaltungs­                       services to final consumers, and turnover related to
gerichtshof (Vienna) by order of that court of 12 August                     other services in so far as they are not supplied
1997 in the case of Wiener Städtische Allgemeine                             exclusively or primarily within the area covered by the
Versicherungs AG, Romed Karl Kleissl, Streiter KG                            legislation ( the Bundesland of the Member State ),
Gasthof 'Post', Alfred Eiter, Stefan Riml, Mag. Josef
Nothdurfter Treuhand- und Steuerberatungsgesellschaft                   — the amount of the levy varies according to the benefit
mbH ( formerly Rasputin Vertriebsgesellschaft mbH ),                         deemed by the legislature to be derived from tourism
Tiroler Röhren- und Metallwerke AG, Elmar Kurz,                              by the sector to which the taxpayer belongs,
Elisabeth Schüller, Anton Gschwentner GesmbH 'Hotel
Schwarzbrunn', Allgemeine Wirtschaftstreuhand- und
Beratungsges. mbH, Kaiserwerke Elektrizitätsversorgungs                 — the amount of the levy is higher in tourist areas than
GesmbH, Miller Optik GesmbH, Michael Khuen-Belasi,                           in others, and
DM Drogeriemarkt GmbH, and Flic Flac Kinder­
bekleidungs-Handelsgesellschaft mbH against Tiroler                     — no provision is made for deduction of input tax ?
                            Landesregierung
                           ( Case C-344/97 )                            (') OJ L 145 , 13 . 6 . 1977, p . 1 .
                             ( 97/C 357/37 )
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsge­                     Action brought on 2 October 1997 by the Federal
richtshof ( Administrative Court), Vienna, of 12 August                 Republic of Germany against the Council of the European
1997, received at the Court Registry on 2 October 1997,                                                   Union
for a preliminary ruling in the case of Wiener Städtische
Allgemeine Versicherungs AG, Romed Karl Kleissl, Streiter                                          (Case C-345/97 )
KG Gasthof ' Post', Alfred Eiter, Stefan Riml, Mag. Josef                                           ( 97/C 357/38 )
Nothdurfter Treuhand- und Steuerberatungsgesellschaft
mbH         ( formerly   Rasputin Vertriebsgesellschaft    mbH ),
Tiroler Röhren- und Metallwerke AG , Elmar Kurz,                        An action against the Council of the European Union was
Elisabeth Schüller, Anton Gschwentner GesmbH ' Hotel                    brought before the Court of Justice of the European
Schwarzbrunn ', Allgemeine Wirtschaftstreuhand- und                     Communities on 2 October 1997 by the Federal Republic
Beratungsges . mbH, Kaiserwerke Elektrizitätsversorgungs                of Germany, represented by Ernst Roder and Claus-Dieter
GesmbH, Miller Optik GesmbH, Michael Khuen-Belasi,                      Quassowski, Federal Economics Ministry, D-53107 Bonn.
 ---pagebreak---  C 357/22           I EN I                 Official Journal of the European Communities                                          22 . 11 . 97
The applicant claims that the Court should:                           common agricultural policy. The determination of the
                                                                      maximum residue values in food for infants and small
                                                                      children primarily serves the protection of human health
— annul Council Directive 97/41/EC of 25 June 1997                    and must therefore be effected on the basis of Article 100a
    amending Directives 76/895/EEC, 86/362/EEC, 86/                   of the EC Treaty.
     363/EEC and 90/642/EEC relating to the fixing of
    maximum levels for pesticide residues in and on,
    respectively, fruit and vegetables, cereals, foodstuffs on        (■) OJ L 184 , 12 . 7. 1997, p. 33 .
    animal origin, and certain products of plant origin,
    including fruit and vegetables ('), in so far as it inserts
    a provision in the second sentence of, respectively
    — Article 1 ( 3 ) of Directive 76/895/EEC,
    — Article 1 (2 ) ( d ) of Directive 86/362/EEC,                   Reference for a preliminary ruling by the Lansratt
                                                                      i Dalarnas Lan by order of that court of 3 September
    — Article 1 ( 2 ) ( b ) of Directive 86/363/EEC, and              1997 in the case of Transwede Airways AB against
                                                                                                  Riksskatteverket
    — Article 1 (2 ) (e ) of Directive 90/642/EEC,                                                ( Case C-346/97 )
                                                                                                    ( 97/C 357/39 )
    to the effect that the disputes settlement procedure laid
    down in Article 5a of the respective Directives is also
    to apply to food for infants and small children,
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Lansratt i
— order the Council to pay the costs.                                 Dalarnas Lan ( County Administrative Court, Dalarna ) of
                                                                      3 September 1997, received at the Court Registry on
                                                                      6 October 1997, for a preliminary ruling in the case of
Pleas in law and main arguments adduced in support:                   Transwede Airways AB against Riksskatteverket on the
                                                                      following questions:
The German Government argues that, in so far as the
contested Directive brings food for infants and small
children within the disputes settlement procedure, the                1 . Are the taxation measures described herein, adopted
Council was not entitled to base it on Article 43 of the EC                under Law         1988:1567       on     environmental  tax on
Treaty, but could do so, at best, on the basis of                          domestic air navigation, contrary to Council Directive
Article 100a .                                                             92/81 /EEC ('the Mineral Oils Directive') ( 5 ),
                                                                           Article 8 ( 1 ) ( b ) of which provides that Member States
                                                                           are to exempt from harmonized excise duty mineral
Products falling under the Directives concerning food for                  oils supplied for use as aviation fuel except for private
infants and small children are not agricultural products for               pleasure flying ?
the purposes of the EC Treaty. The decision whether the
products in question are to be classified under Annex II to
the EC Treaty or under a tariff heading not contained in
that Annex can, the Government submits, be made only in               2 . If question 1 is answered in the affirmative, can
individual cases ono the basis of the formula for the                      Article 8 ( 1 ) ( b ) of the Mineral Oils Directive be
particular product. The products covered by Directives 91/                 regarded as having direct effect, so that the provision
321 /EEC and 96/5/EC are to a significant extent not                       can be relied on by an individual against a State
agricultural products, but products which are to be                        authority before a national court ?
classified within Chapters 19 or 21 of the Brussels
nomenclature .
                                                                      3 . If the Mineral Oils Directive is to be applied in the
                                                                           present case, can the taxation measures in question be
Even if a significant proportion of the food for infants and               split up into Community compatible and Community
small children covered by the contested Directives did fall                incompatible parts, owing to the fact that Swedish
under Annex II and thereby became part of the common                       environmental tax is calculated partly on the basis of
agricultural market, it does not necessarily follow that the               fuel consumption and partly on the basis of emissions
rules contribute to the attainment of one or more of the
                                                                           of hydrocarbons and nitric oxides ?
objectives of the common agricultural policy cited in
Article 39 of the Treaty and do not primarily serve other
purposes. In the opinion of the German Government, rules              (') Council Directive 92/81 /EEC of 19 October 1992 on the
whose primary purpose is the protection of human health                   harmonization of the structures of excise duties on mineral
must be legally based on Article 100a of the EC Treaty,                   oils ( OJ L 316 , 31 . 10 . 1992, p. 12 ).
even if they also concern products which are listed in
Annex II to the Treaty, and may possibly also contribute
to the attainment of one or more of the objectives of the