CELEX: C2003/275/17
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court of 30 September 2003 in Case C-167/01 (Reference for a preliminary ruling from the Kantongerecht te Amsterdam): Kamer van Koophandel en Fabrieken voor Amsterdam, v Inspire Art Ltd (Articles 43 EC, 46 EC and 48 EC — Company formed in one Member State and carrying on its activities in another Member State — Application of the company law of the Member State of establishment intended to protect the interests of others)

C 275/10                EN                           Official Journal of the European Union                                             15.11.2003
                 JUDGMENT OF THE COURT                                            national court to ascertain, on the basis of a comprehensive
                                                                                  assessment of national law, whether it is actually the case that
                          (Fifth Chamber)                                         only claimants who bring proceedings based on domestic
                                                                                  constitutional law may rely on the ‘Anlaßfallwirkung’ and that
                                                                                  the rules governing repayment of charges held to be incompatible
                        of 2 October 2003
                                                                                  with domestic constitutional law are more favourable than those
                                                                                  applicable to actions relating to taxes held to be contrary to
in Case C-147/01 (Reference for a preliminary ruling                              Community law.
from the Verwaltungsgerichtshof): Weber’s Wine World
Handels-GmbH, Ernestine Rathgeber, Karl Schlosser,                           4.   The principle of effectiveness precludes national legislation or a
Beta-Leasing GmbH v Abgabenberufungskommission                                    national administrative practice which makes the exercise of the
                               Wien (1)                                           rights conferred by the Community legal order impossible in
                                                                                  practice or excessively difficult by establishing a presumption of
(Indirect taxation — Duty on sales of alcoholic beverages —                       unjust enrichment on the sole ground that the duty was passed
 Incompatibility with Community law — Recovery of duty)                           on to third parties.
                         (2003/C 275/16)
                                                                             (1) OJ C 173 of 16.6.2001.
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                                              JUDGMENT OF THE COURT
In Case C-147/01: Reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Austria) for a preliminary                                          of 30 September 2003
ruling in the proceedings pending before that court between
Weber’s Wine World Handels-GmbH, Ernestine Rathgeber,
Karl Schlosser, Beta-Leasing GmbH and Abgabenberufungs-                      in Case C-167/01 (Reference for a preliminary ruling
kommission Wien, on the interpretation of Article 5 of the EC                from the Kantongerecht te Amsterdam): Kamer van
Treaty (now Article 10 EC) and paragraph 3 of the operative                  Koophandel en Fabrieken voor Amsterdam, v Inspire Art
part of the judgment of the Court in Case C-437/97 EKW and                                                    Ltd (1)
Wein & Co [2000] ECR I-1157, the Court (Fifth Chamber),
composed of: M. Wathelet (Rapporteur), President of the                      (Articles 43 EC, 46 EC and 48 EC — Company formed in
Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and                       one Member State and carrying on its activities in another
S. von Bahr, Judges; F.G. Jacobs, Advocate General; M.-F.                    Member State — Application of the company law of the
Contet, Principal Administrator, for the Registrar, has given a              Member State of establishment intended to protect the
judgment on 2 October 2003, in which it has ruled:                                                    interests of others)
1.   The adoption by a Member State of rules, such as the Wiener                                       (2003/C 275/17)
     Abgabenordnung, fixing more restrictive procedural rules on
     recovery of sums levied but not due, in order to forestall the
     possible effects of a judgment of the Court holding that                                    (Language of the case: Dutch)
     Community law precludes the maintenance of a national duty,
     is contrary to Community law and, more particularly, to                 (Provisional translation; the definitive translation will be published
     Article 5 of the EC Treaty (now Article 10 EC) only in so far                              in the European Court Reports)
     as it is aimed specifically at that duty, a point which falls to be
     determined by the national court.
2.   The rules of Community law on the recovery of sums levied but           In Case C-167/01: Reference to the Court under Article 234
     not due are to be interpreted as meaning that they preclude             EC by the Kantongerecht te Amsterdam (Netherlands) for a
     national rules which refuse — a point which falls to be                 preliminary ruling in the proceedings pending before that
     determined by the national court — repayment of a charge                court between Kamer van Koophandel en Fabrieken voor
     incompatible with Community law on the sole ground that the             Amsterdam, and Inspire Art Ltd, on the interpretation of
     charge was passed on to third parties, without requiring that           Articles 43 EC, 46 EC and 48 EC, the Court, composed of:
     the degree of unjust enrichment that repayment of the charge            G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
     would entail for the taxable person be established.                     (Rapporteur), R. Schintgen and C.W.A. Timmermans (Presi-
                                                                             dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
3.   The principle of equivalence precludes national rules which lay         Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
     down less favourable procedural rules for claims for repayment          Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; S. Alber,
     of a charge which has been levied though not due from the               Advocate General; M.-F. Contet, Principal Administrator, for
     aspect of Community law than those applicable to similar                the Registrar, has given a judgment on 30 September 2003, in
     actions based on certain provisions of domestic law. It is for the      which it has ruled:
 ---pagebreak--- 15.11.2003              EN                              Official Journal of the European Union                                                 C 275/11
1.   It is contrary to Article 2 of the Eleventh Council Directive              plc, established in London (United Kingdom) (represented by
     89/666/EEC of 21 December 1989 concerning disclosure                       D. Anderson, QC, and M. Chamberlain, barrister, instructed by
     requirements in respect of branches opened in a Member State               S. Ramsay, solicitor), British Coal Corporation, established in
     by certain types of company governed by the law of another                 London (represented by D. Vaughan and D. Lloyd Jones, QC,
     State for national legislation such as the Wet op de Formeel               instructed by C. Mehta, solicitor), PowerGen (UK) plc, formerly
     Buitenlandse Vennootschappen (Law on Formally Foreign                      PowerGen plc, established in London (K.P.E. Lasok, QC,
     Companies) of 17 December 1997 to impose on the branch of                  instructed by P. Lomas, solicitor) and Commission of the
     a company formed in accordance with the laws of another                    European Communities (Agent: A. Whelan, assisted by
     Member State disclosure obligations not provided for by that               J.E. Flynn, barrister): Appeals against the judgment of the Court
     directive.                                                                 of First Instance of the European Communities (Second
                                                                                Chamber) of 7 February 2001 in Case T-89/98 NALOO v
2.   It is contrary to Articles 43 EC and 48 EC for national                    Commission [2001] ECR II-515, seeking to have that judgment
     legislation such as the Wet op de Formeel Buitenlandse                     set aside, the other party to the proceedings being: National
     Vennootschappen to impose on the exercise of freedom of                    Association of Licensed Opencast Operators (NALOO), estab-
     secondary establishment in that State by a company formed in               lished in Newcastle upon Tyne (United Kingdom) represented
     accordance with the law of another Member State certain                    by M. Hoskins, barrister, instructed by A. Dowie, solicitor,
     conditions provided for in domestic company law in respect of              with an address for service in Luxembourg, the Court (Fifth
     company formation relating to minimum capital and directors’               Chamber), composed of: M. Wathelet, President of the Chamb-
     liability. The reasons for which the company was formed in that            er, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and
     other State, and the fact that it carries on its activities exclusively    A. Rosas, Judges; S. Alber, Advocate General; L. Hewlett,
     or almost exclusively in the Member State of establishment, do             Principal Administrator, for the Registrar, has given a judgment
     not deprive it of the right to invoke the freedom of establishment         on 2 October 2003, in which it:
     guaranteed by the Treaty, save where the existence of an abuse
     is established on a case-by-case basis.
                                                                                1.     Sets aside the judgment of the Court of First Instance of
(1) OJ C 200 of 14.7.2001.                                                             7 February 2001 in Case T-89/98 NALOO v Commission in
                                                                                       so far as it annuls:
                                                                                       —     the part of Decision IV/E-3/NALOO of 27 April 1998
                                                                                             in which the Commission of the European Communities
                                                                                             held that Article 65 of the ECSC Treaty was not
                                                                                             applicable to the setting of royalties for coal extraction;
                 JUDGMENT OF THE COURT
                          (Fifth Chamber)                                              —     the part of that decision in which the Commission of the
                                                                                             European Communities rejected the complaint relating to
                                                                                             the level of the royalties charged for coal extraction before
                         of 2 October 2003                                                   1 April 1990.
in Joined Cases C-172/01 P, C-175/01 P, C-176/01 P
and C-180/01 P: International Power plc, British Coal                           2.     For the rest, dismisses the appeals.
Corporation, PowerGen (UK) plc, Commission of the
European Communities v National Association of
         Licensed Opencast Operators (NALOO) (1)
                                                                                3.     Dismisses the application of the National Association of
                                                                                       Licensed Opencast Operators (NALOO) in so far as it seeks:
(Appeal — ECSC Treaty — Rejection of a complaint alleging
discriminatory pricing and unreasonable royalties — Powers
                         of the Commission)
                                                                                       —     annulment of the part of Decision IV/E-3/NALOO in
                                                                                             which the Commission of the European Communities held
                          (2003/C 275/18)
                                                                                             that Article 65 of the ECSC Treaty was not applicable to
                                                                                             the setting of royalties for coal extraction.
                    (Language of the case: English)
                                                                                       —     annulment of the part of that decision in which the
                                                                                             Commission of the European Communities rejected the
In Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and                                       complaint relating to the level of the royalties charged for
C-180/01 P, International Power plc, formerly National Power                                 coal extraction before 1 April 1990.