CELEX: C1999/033/06
Language: en
Date: 1999-02-06 00:00:00
Title: Reference for a preliminary ruling by the Diikitiko Protodikio Thessalonikis (Fifth Chamber, Three Judges) by judgment of that court of 29 October 1998 in the case of Kapniki Mikhailidis A.E. against the Idrima Kinonikon Asfalision (Case C-442/98)

C 33/4                EN                 Official Journal of the European Communities                                    6.2.1999
down in directives for their transposition. That time-limit             refund to a trader financial charges on the value of
expired on 30 November 1996 without the Italian                         exported goods which must be regarded as levied in
Republic having brought into force the necessary                        breach of Community law, on the basis that it is
provisions in order to comply with the directive referred               established that the person who was required to pay
to in the Commission's application.                                     the charges at issue in fact passed them on to other
                                                                        persons, namely the purchasers of the goods, and it
(1) OJ L 155, 6.7.1995, p. 1.                                           does not follow, nor does the trader claim, that that
(2) OJ L 374, 31.12.1990, p. 1.                                         charge caused an increase in the price of the products
(3) OJ L 183, 29.6.1989, p. 1.                                          and a reduction in the volume of his sales with the
                                                                        result that he suffered subsequent loss?
Reference for a preliminary ruling by the Diikitiko
Protodikio Thessalonikis (Fifth Chamber, Three Judges)
by judgment of that court of 29 October 1998 in the case            Reference for a preliminary ruling by the Diikitiko
of Kapniki Mikhailidis A.E. against the Idrima Kinonikon            Protodikio Thessalonikis (Fifth Chamber, Three Judges)
                           Asfalision                               by judgment of that court of 29 October 1998 in the case
                                                                    of Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                       (Case C-441/98)
                                                                                               Asfalision
                        (1999/C 33/05)
                                                                                           (Case C-442/98)
                                                                                            (1999/C 33/06)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Diikitiko
Protodikio Thessalonikis (Administrative Court of First
Instance, Thessaloniki) (Fifth Chamber, Three Judges) of            Reference has been made to the Court of Justice of the
29 October 1998, received at the Court Registry on                  European Communities by judgment of the Diikitiko
4 December 1998, for a preliminary ruling in the case of            Protodikio Thessalonikis (Administrative Court of First
Kapniki Mikhailidis A.E. against the Idrima Kinonikon               Instance, Thessaloniki) (Fifth Chamber, Three Judges) of
Asfalision (Social Security Institution) on the following           29 October 1998, received at the Court Registry on
questions:                                                          4 December 1998, for a preliminary ruling in the case of
                                                                    Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                                                                    Asfalision (Social Security Institution) on the following
1. Does a charge which is levied by a Member State on               questions:
    domestic goods exported to another Member State in
    proportion to their value constitute a charge having
    equivalent effect to customs duties on exports, having          1. Does a charge which is levied by a Member State on
    regard to the fact that that charge, which is invariably            domestic goods exported to another Member State in
    imposed on a particular category of domestic goods,                 proportion to their value constitute a charge having
    in accordance with objective criteria and within the                equivalent effect to customs duties on exports, having
    framework of a general system of taxation, is not                   regard to the fact that that charge, which is invariably
    imposed on domestic products which are distributed in               imposed on a particular category of domestic goods,
    the home market or on like goods which are imported                 in accordance with objective criteria and within the
    into the country from another Member State?                         framework of a general system of taxation, is not
    Alternatively is the abovementioned proportional                    imposed on domestic products which are distributed in
    contribution payable by tobacco exporters Ð which is                the home market or on like goods which are imported
    levied and credited as income of the IKA, a social                  into the country from another Member State?
    security institution, for the benefit of the Tobacco                Alternatively is the abovementioned proportional
    Workers' Pensions Branch Ð by reason of its                         contribution payable by tobacco exporters Ð which is
    objective, that is to say boosting the financial                    levied and credited as income of the IKA, a social
    resources of the particular insurance branch, not                   security institution, for the benefit of the Tobacco
    inconsistent with Community law, in that it constitutes             Workers' Pensions Branch Ð by reason of its
    in a broader sense a contribution in favour of an                   objective, that is to say boosting the financial
    insurance body for the purpose of achieving the social              resources of the particular insurance branch, not
    security objectives in respect of the particular group of           inconsistent with Community law, in that it constitutes
    workers, who may be employed in undertakings like                   in a broader sense a contribution in favour of an
    the plaintiff's, and are in any event entitled, even by             insurance body for the purpose of achieving the social
    means of the imposition of charges such as the one in               security objectives in respect of the particular group of
    this case, to social security, in accordance with the               workers, who may be employed in undertakings like
    appropriate provisions of the constitution of the                   the plaintiff's, and are in any event entitled, even by
    particular Member State?                                            means of the imposition of charges such as the one in
                                                                        this case, to social security, in accordance with the
2. If the first part of the first question is answered in the           appropriate provisions of the constitution of the
    affirmative, is a Member State in principle obliged to              particular Member State?
 ---pagebreak--- 6.2.1999             EN                  Official Journal of the European Communities                                       C 33/5
2. If the first part of the first question is answered in the       Reference for a preliminary ruling by the Second Chamber
    affirmative, is a Member State in principle obliged to          of the Supremo Tribunal Administrativo by judgment of
    refund to a trader financial charges on the value of            that court of 28 October 1998, in the case of Fazenda
    exported goods which must be regarded as levied in                          PuÂblica v CaÃmara Municipal do Porto
    breach of Community law, on the basis that it is                                        (Case C-446/98)
    established that the person who was required to pay
    the charges at issue in fact passed them on to other                                     (1999/C 33/08)
    persons, namely the purchasers of the goods, and it
    does not follow, nor does the trader claim, that that
    charge caused an increase in the price of the products          Reference has been made to the Court of Justice of the
    and a reduction in the volume of his sales with the             European Communities by a judgment of the Second
    result that he suffered subsequent loss?                        Chamber of the Supremo Tribunal Administrativo
                                                                    (Supreme Administrative Court) of 28 October 1998,
                                                                    which was received at the Court Registry on 7 December
                                                                    1998, for a preliminary ruling in the case of Fazenda
                                                                    PuÂblica v CaÃmara Municipal do Porto, on the following
                                                                    questions:
Reference for a preliminary ruling by the Pretura                   (a) Does the expression activities or transactions in
Circondariale di Milano by order of that court of                         which they engage as public authorities' used in the
6 November 1998 in the case of Unilever Italia SpA                        first subparagraph of Article 4(5) of the Sixth VAT
                  against Central Food SpA                                Directive (1) cover the renting out of areas for the
                                                                          parking of vehicles (both on-street and off-street
                       (Case C-443/98)                                    parking) by the public authorities (a municipality)?
                        (1999/C 33/07)
                                                                    (b) May the significant distortions of competition
                                                                          referred to in the second subparagraph of Article 4(5)
                                                                          of the Sixth VAT Directive be defined case by case by
                                                                          the Minister of Finance of a Member State?
Reference has been made to the Court of Justice of the
European Communities by order of the Pretura
Circondariale di Milano (District Magistrate's Court,               (c)   If the national provision which empowers the
Milan) of 6 November 1998, which was received at the                      Minister of Finance to define, case by case,
Court Registry on 7 December 1998, for a preliminary                      significant     distortions     of    competition      is
ruling in the case of Unilever Italia SpA against Central                 unconstitutional, in that it infringes the principle that
Food SpA on the following question:                                       taxation must have a legislative basis, but conforms
                                                                          with Community law (with the Sixth Directive), must
                                                                          the national court comply with its Constitution or
                                                                          must it, first and foremost, comply with Community
May a national provision which has been promulgated                      law by virtue of the principle of the primacy of that
and entered into force in the Member State (Law No 313                    law over constitutions?
of 3 August 1998) be disapplied by a national court called
upon to issue an order for payment in relation to the
supply of extra virgin olive oil labelled in a manner not in        (d) Will the public authorities always be regarded as
accordance with the provisions of the aforementioned                      taxable persons provided that the activities in which
national provision, considering that, following the                       they engage are not insignificant, or are they taxable
notification and the subsequent examination of a draft                    persons only as regards the activities or transactions
national Law concerning the labelling of extra virgin olive               listed in Annex D, to which the third subparagraph
oil, virgin olive oil and olive oil, the European                         of Article 4(5) of the Sixth VAT Directive refers?
Commission, on the basis of Article 9(3) of Council
Directive 83/189/EEC (1) laying down a procedure for the
provision of information in the field of technical standards        (e)   May a national law authorise the Minister of Finance
and regulations, formally requested the notifying State not               to define, case by case, what activities are being
to legislate, prescribing a period (until 14 September                    engaged in on a basis that is not significant?
1999) in respect of the marketing rules for olive oil,
pending the adoption of a Community regulation on the
matter at issue?'                                                   (f)   For the purposes of the last subparagraph of
                                                                          Article 4(5) of the Sixth VAT Directive, may a
                                                                          Member State regard on activity of renting out areas
(1) OJ L 109, 26.4.1983, p. 8.                                            intended for the parking of vehicles, when it is
                                                                          carried on by a municipality, as an activity in which
                                                                          the municipality engages as a public authority, having
                                                                          regard to the provisions of Article 13B(b)(2) of the
                                                                          Sixth VAT Directive?