CELEX: C1997/318/05
Language: en
Date: 1997-10-18 00:00:00
Title: ORDER OF THE COURT (Fifth Chamber) of 10 July 1997 in Case C-234/94 Waltraud Tomberger v. Gebrüder von der Wettern GmbH (Correction)

18 . 10 . 97             EN                  Official Journal of the European Communities                                   C 318/3
     failed to fulfil its obligations pursuant to the first             must be construed as not precluding the maintenance of a
     subparagraph of Article 8 (1 ) of Council Directive 83/            national charge having the characteristics of a stamp duty
     189/EEC of 28 March 1983 laying down a procedure                   levied on works contracts and contracts for the supply of
     for the provision of information in the field of                   materials or any kind of consumer article, to the exclusion
     technical standards and regulations, as amended by                 of a large portion of economic transcations in the Member
     Directive 88/182/EEC;                                              State concerned.
                                                                        O OJ C 180, 22 . 6 . 1996 .
2 . orders the Italian Republic to pay the costs.
(') OJ C 351 , 10 . 12 . 1994 .
                                                                                         ORDER OF THE COURT
                                                                                                (Fifth Chamber)
               JUDGMENT OF THE COURT                                                            of 10 July 1997
                           ( First Chamber)                             in Case C-234/94 Waltraud Tomberger v. Gebrüder von
                                                                                            der Wettern GmbH (')
                      of 17 September 1997
                                                                                                   (Correction)
in Case C-130/96 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo ): Fazenda Pública v.                                        ( 97/C 318/05 )
Solisnor-Estaleiros Navais SA, also represented: Ministério
                                Público P )
                                                                                       (Language of the case: German)
(VAT — Article 33 of the sixth VAT Directive —
Maintenance of stamp duties — Stamp duty on the value
  of contracts relating to the construction of an oil tanker)           In Case C-234/94 : reference to the Court under Article 177
                                                                        of the EC Treaty from the Bundesgerichtshof for a
                             ( 97/C 318/04 )                            preliminary ruling in the proceedings pending before that
                                                                        court between Waltraud Tomberger and Gebriider von der
                                                                        Wettern GmbH on the interpretation of Articles 31 ( 1 )
              (Language of the case: Portuguese)                        and 59 of the fourth Council Directive 78/660/EEC of
                                                                        25 July 1978 based on Article 54 ( 3 ) (g) of the Treaty on
                                                                        the annual accounts of certain types of companies ( OJ
  (Provisional translation; the definitive translation will be          L 222, 14 . 8 . 1978 , p. 11 ) as amended by the seventh
          published in the European Court Reports)                      Council Directive 83/349/EEC based on Article 54 ( 3 ) ( g)
                                                                        of the Treaty on consolidated accounts ( OJ L 193 , 18 . 7.
                                                                        1983 , p. 1 ), the Court ( Fifth Chamber), composed of
In Case C-130/96 : reference to the Court under Article 177
                                                                        J. C. Moitinho de Almeida (President of the Chamber),
of the EC Treaty from the Supremo Tribunal Administra­                  C. Gulmann, D. A. O. Edward ( Rapporteur), J. -P.
tive ( Supreme Administrative Court) Portugal, for a                    Puissochet and M. Wathelet, Judges; G. Tesauro,
preliminary ruling in the proceedings pending before that               Advocate-General, R. Grass, Registrar, has made an order
court between Fazenda Publica and Solisnor-Estaleiros
                                                                        on 10 July 1997 correcting the judgment of 27 June
Navais SA, also represented : Ministerio Publico — on the               1996 (2 ) the operative part of which should read as
interpretation of Article 33 of the sixth Council Directive             follows :
77/388/EEC of 17 May 1977 on the harmonization of the
laws of the Member States relating to turnover taxes —
common system of value added tax: uniform basis of                      Where
assessment ( OJ L 145 , 13 . 6 . 1977, p. 1 ) and of
Article 378 of the Act concerning the conditions of
accession of the Kingdom of Spain and the Portuguese                    — one company (the parent company) is the sole
Republic and the adjustments to the Treaties ( OJ L 302,                    shareholder in another company (the subsidiary), and
15 . 11 . 1985, p. 23 ) — the Court ( First Chamber ),                      controls it,
composed of: L. Sevon, President of the Chamber, P. Jann
and M. Wathelet ( Rapporteur), Judges; P. Leger, Advocate­              — under national law, the parent company and the
General; H. von Holstein, Deputy Registrar, for the                         subsidiary form a group,
Registrar, has given a judgment on 17 September 1997, in
which it has ruled;
                                                                        — the financial years of the two companies coincide,
Article 33 of the sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonization of the laws of the                     — the subsidiary 's general meeting approved the
Member States relating to turnover taxes — common                           appropriation of certain profits to the parent company
system of value added tax: uniform basis of assessment                      in respect of the financial year concerned,
 ---pagebreak--- C 318/4                    EN               Official Journal of the European Communities                                 18 . 10 . 97
— that general meeting took place before completion of                  Pleas in law and main arguments adduced in support:
       the audit of the parent company 's annual accounts for
       that financial year, and
                                                                       A. Disallowance of expenditure in the olive
                                                                            oil sector
— the national court is satisfied that the subsidiary 's
       annual accounts for the financial year in question give
       a true and fair view of its assets and liabilities,             In the view of the Hellenic Republic the financial
       financial position and profit or loss,                          corrections in the olive oil sector are the result of a
                                                                       mistaken assessment of the factual circumstances and of
                                                                       the Commission exceeding the limits of its discretion . The
                                                                       Hellenic Republic had informed the Commission of the
it is not contrary to the rule laid down in                            objective difficulties of establishing a register of olive
Article 31 (1 ) (c) (aa) of the fourth Council Directive 78/           cultivation within the period laid down in Regulations
660/EEC based on Article 54 (3) (g) of the Treaty on the                ( EEC ) No 154/75 and ( EEC) No 3453/80 and had bona
annual accounts of certain types of companies, as                      fide collaborated with it to resolve those difficulties . It
amended by the seventh Council Directive 83/349/EEC                    could, consequently, rely on the impossibility of
based on Article 54 (3) (g) of the Treaty on consolidated              implementing a Community measure, in accordance with
accounts, for the national court to consider that the
                                                                       the case-law in Case C-52/84 Commission v. Belgium and
profits in question must be entered in the parent                      Case C-348/93 Commission v. Italy. Moreover, the flat­
company 's balance sheet for the financial year in respect             rate reduction of the amount of aid for the production of
of which they were appropriated by the subsidiary.                     olive oil is arbitrary and exceeds the limits of the
                                                                       discretionary power of the Commission.
H OJ C 288 , 15 . 10 . 1994 , p . 2 .
( 2 ) OJ C 336 , 9 . 11 . 1996 , p . 3 .
                                                                       B. Disallowance of expenditure in the
                                                                            tobacco sector
                                                                       The Hellenic Republic claims that the Commission has
                                                                       wrongly interpreted the Regulations in question . It refers
Action brought on 4 July 1997 by the Hellenic Republic                 on this point to its arguments in Case C-61/95 on which
     against the Commission of the European Communities                the judgment of the Court of Justice is awaited and which
                                                                       concerned the accounts for the year 1991 .
                            ( Case C-243/97
                              ( 97/C 318/06
                                                                       C. Disallowance of expenditure for the
                                                                            cultivation of vineyards
An action against the Commission of the European
Communities was brought before the Court of Justice on                 The applicant relies on the difficulties of establishing the
4 July 1997 by the Hellenic Republic, represented by                   vineyard register of which it informed the Commission
Ioannis-Konstantinos Khalkias, Member of the State Legal               and which the Council recognized, extending the period
Service, and Elli Mamouna, of the Special Legal                        for completing the register in question until 31 December
Department for the European Communities in the                         1998 . Moreover, the local controls of grubbed­
Ministry of Foreign Affairs, with an address for service in            up vineyards concerned 100% of the cases aided.
Luxembourg at the Greek Embassy, 177 Val Ste Croix.                    Consequently, the flat-rate financial correction of 2%
                                                                       imposed is unjustified.
The Hellenic Republic claims that the Court should:
                                                                       D. Disallowance of expenditure in the public
                                                                            storage of cereal sector
— hold the application admissible,
                                                                      The Hellenic Republic maintains that for 1993 it applied
                                                                      in this sector a new control system, radically different
— annul or amend Commission Decision E(97) 1180                        from the previous system, and the Commission itself, in its
      final of 23 April 1997 on the clearance of the accounts          summary statement, acknowledged the improvements
      presented by the Member States in respect of the                made . Consequently a flat-rate correction of 2 % was
      expenditure for 1993 of the EAGGF, Guarantee                     imposed erroneously in that sector.
      Section, as regards the specifically-contested chapters
      which relate to financial corrections in the olive oil,
      tobacco, wine and cereals ( public storage ) sectors.