CELEX: C1997/295/29
Language: en
Date: 1997-09-27 00:00:00
Title: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 10 June 1997 in the case of Wrangler Germany GmbH v. Metro Selbstbedienungs-Großhandel GmbH (Case C-278/97)

27 . 9 . 97           EN                 Official Journal of the European Communities                                    C 295/ 19
The applicant claims that the Court should :                        resources base is thereby reduced, the Community must be
                                                                    credited with the equivalent of the amount of own
                                                                    resources due, by reason of the infringement, for the
— declare that, by failing to subject to value added tax            period in question . The Community would otherwise
     motorway tolls as consideration for the service                suffer a financial loss to be compensated via GNP
     supplied to users, contrary to Articles 2 and 4 of the         resources . The infringement would thereby cause the other
     Sixth Council Directive 77/388/EEC of 17 May                   Member States financial damage; the principle of equal
     1977 ('), the French Republic has failed to fulfil its         treatment would no longer be complied with.
     obligations under the Treaty establishing the European
     Community,
                                                                    It observes that certain Member States such as Italy, Spain
— declare that, by failing to make the corresponding                and Portugal have, unlike the French Government, always
     sums, with interest for late payment, available to the         paid over the own resources corresponding to those
     Commission as own resources, the French Republic               supplies of services, and that the Netherlands, although
     has failed to fulfil its obligations under the Treaty          contesting the Commission's interpretation in the context
     establishing the European Community,                           of proceedings for failure to fufil obligations, has paid
                                                                    over the own resources in question ' subject to the decision
                                                                    of the Court of Justice'. The fact that the French
— order the French Republic to pay the costs .                      authorities have not paid over the contributions
                                                                    corresponding to those supplies of services amounts to a
                                                                    difference in treatment which runs counter to the rules for
Pleas in law and main arguments adduced in support:                 financing the Community budget and seriously
                                                                    compromises the uniform application of those rules
( On the taxation of motorway tolls )                               regarding own resources based on Community VAT.
According to the Commission, the making available of                (') OJ L 145 , 13 . 6 . 1977, p . 1 .
                                                                    ( 2 ) OJ L 155 , 7 . 6 . 1989 , p . 1 .
highway infrastructure constitutes an economic activity             (') OJ L 336 , 27 . 12 . 1977 , p . 1
within the meaning of Articles 2 and 4 of the Sixth VAT
Directive. Under Article 4 ( 5 ) of that Directive, the only
activities in respect of which bodies governed by public
law are not to be considered taxable persons are those
which fall strictly within the performance of the functions
of a public authority. Users are not obliged to use the toll
network, however. The fact that motorists individually
agree to make a payment to use a highway network or                 Reference for a preliminary ruling from the Oberster
certain infrastructure is indicative of the fact that that          Gerichtshof by order of that court of 10 June 1997 in
payment corresponds to a service which they receive in              the case of Wrangler Germany GmbH v. Metro
order to enjoy the right to use the infrastructure in                             Selbstbedienungs-GrofShandel GmbH
question . The legal classification of a transaction in the                                      ( Case C-278/97 )
context of the Sixth VAT Directive is independent of the
legal classification it may be given in the various national                                       ( 97/C 295/29 )
laws .
In so far as the French authorities consider that the               Reference has been made to the Court of Justice of the
services supplied by the concessionary are supplied to the          European Communities by an order of the Oberster
State, not to the economic operators who use the                    Gerichtshof (Austrian Supreme Court ) of 10 June 1997,
infrastructure, it is impossible for those operators to             which was received at the Court Registry on 30 July 1997,
deduct the tax which is included as a residual amount in            for a preliminary ruling in the case of Wrangler Germany
the toll paid .                                                     GmbH v. Metro Selbstbedienungs-GroShandel GmbH on
                                                                    the following questions:
 ( On the own resources question )
                                                                     Is Article 7 ( 1 ) of the First Council Directive 89/ 104/EEC
                                                                     of 21 December 1988 to approximate the laws of the
It follows from Articles 1 and 2 ( 1 ) of Council Regulation
                                                                    Member States relating to trade marks ( OJ L 40, 11 . 2 .
 ( EEC, Euratom ) No 1553/89 (2 ) ( and the corresponding
provisions of Council Regulation ( EEC, Euratom, ECSC )              1989, p. 1 , ' the Trade Mark Directive') to be interpreted
No 2892/77 ( } ) which it replaced ) that the own resources          as meaning that the trademark entitles its proprietor to
corresponding to receipts from VAT are to be made
                                                                     prohibit a third party from using the mark for goods
                                                                    which have been put on the market under that mark in a
available by the Member State in which the VAT has been
                                                                     State which is not a Contracting State ?
charged .
The      Commission    considers that   where    there  is  an       May the proprietor of the trade mark on the basis of
 infringement of the Sixth VAT Directive and the VAT                 Article 7 ( 1 ) of the Trade Mark Directive alone seek an
 ---pagebreak--- C 295/20                EN                     Official Journal of the European Communities                                  27. 9 . 97
order that the third party cease using the trademark for                  München ( Labour Court, Munich ) of 3 July 1997, which
goods which have been put on the market under that                        was received at the Court Registry on 1 August 1997, for
mark in a State which is not a Contracting State ?                        a preliminary ruling in the case of Andrea Krüger v.
                                                                          Kreiskrankenhaus Ebersberg on the following question :
                                                                          Is a rule of national law — in this case Paragraph 3n of
                                                                          the Bundesangestelltentarifvertrag ( federal employees'
                                                                          collective agreement, 'BAT') in conjunction with the
Reference for a preliminary ruling from the Finanzgericht                 Zuwendungs-TV ( collective agreement on allowances ) of
Düsseldorf by order of that court of 22 July 1997 in the                  12 October 1993 — compatible with Directive 76/207/
case    of   Rose    Elektrotechnik GmbH &              Co  KG    v.      EEC on the implementation of the principle of equal
                     Oberfinanzdirektion Köln                             treatment for men and women as regards access to
                         ( Case C-280/97 )                                employment, vocational training and promotion, and
                                                                          working conditions ('), and with Article 119 of the EC
                             ( 97/C 295/30 )                              Treaty, if it provides that workers who exercise an activity
                                                                          which is not subject to compulsory social insurance during
                                                                          child-care leave , by contrast with workers liable to
Reference has been made to the Court of Justice of the                    compulsory social insurance, do not receive an annual
European Communities by an order of the Fourth Senate                     special allowance under the relevant collective agreement ?
of the Finanzgericht Düsseldorf ( Finance Court,                          Is that rule compatible with the above provisions in
Düsseldorf) of 22 July 1997, which was received at the                    particular if workers who are on child-care leave but are
Court Registry on 1 August 1997, for a preliminary ruling                 not working nevertheless receive the special allowance
in the case of Rose Elektrotechnik GmbH & Co KG v.
                                                                          under the collective agreement in the first year ?
Oberfinanzdirektion Köln on the following questions :
                                                                          (') OJ L 39 , 14 . 2 . 1976 , p . 40 .
 1.  Is the Common Customs Tariff in the version in
     Annex I to Commission Regulation ( EC ) No 1734/96
     of 9 September 1996 amending Annex I to Council
     Regulation ( EEC ) No 2658/87 on the tariff and
     statistical nomenclature and on the Common Customs
     Tariff (')   ( combined         nomenclature    1997 )  to   be
     interpreted as meaning that an article described as a                Action brought on 1 August 1997 by the Commission of
     junction box and consisting of a rectangular container                  the European Communities against the French Republic
     with lid of coated die-cast aluminium ( aluminium/                                              ( Case C-282/97 )
     silicon alloy with aluminium content predominant by
     weight ) with four steel connecting bolts and four                                                 ( 97/C 295/32 )
     earthing bolts of copper-plated steel ( packed loose in
     the article and yet to be inserted into threaded holes
     provided for that purpose ) is to be classified under                 An action against the French Republic was brought before
     heading No 8538 ?                                                     the Court of Justice on 1 August 1997 by the Commission
                                                                           of the European Communities, represented by Fernando
                                                                           Castillo de la Torre, of its Legal Service, and O. Couvert-
 2 . If the answer to Question 1 is negative : Is the
                                                                           Castera, a national civil servant on secondment to that
     Common Customs Tariff ( Combined Nomenclature
                                                                           service, acting as Agents, with an address for service in
      1997) to be interpreted as meaning that such an                      Luxembourg at the office of Carlos Gomez de la Cruz,
     Article is to be classified, applying the first sentence of
                                                                           Wagner Centre , Kirchberg.
      General Rule 2(a ) for the interpretation of the
      Combined Nomenclature, under heading No 8536 ?
                                                                           The Commission of the European Communities claims
 H OJ L 238 , 19 . 9 . 1996 , p. 1 .                                       that the Court should :
                                                                           — declare that, by failing to adopt witin the period
                                                                                prescribed the laws, regulations and administrative
                                                                                provisions necessary to comply with Council Directive
                                                                                92/73/EEC (') of 22 September 1992 widening the
 Reference for a preliminary ruling from the Arbeitsgericht                     scope of Directives 65/65/EEC (2 ) and 75/319/EEC ( 3 )
 München by order of that court of 3 July 1997 in the case                      on the approximation of provisions laid down by
       of Andrea Krüger v. Kreiskrankenhaus Ebersberg                           law, regulation or administrative action relating to
                           ( Case C-281/97)                                     medicinal products and laying down additional
                                                                                provisions on homeopathic medicinal products, the
                               ( 97/C 295/31 )                                  French Republic has failed to fulfil its obligations
                                                                                under the EC Treaty and that Directive,
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Arbeitsgericht                     — order the French Republic to pay the costs.