CELEX: C2004/021/43
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-496/03: Action brought on 24 November 2003 by the Commission of the European Communities against the French Republic

24.1.2004               EN                          Official Journal of the European Union                                           C 21/23
Reference for a preliminary ruling by the Hoge Raad der                     Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 November                        Nederlanden by judgment of that Court of 21 November
2003 in the case of Senior Engineering Investments B.V.                     2003 in the case of Intermodal Transports B.V. against
              against Staatssecretaris van Financiën                                         Staatssecretaris van Financiën
                                                                                                     (Case C-495/03)
                          (Case C-494/03)
                                                                                                      (2004/C 21/42)
                           (2004/C 21/41)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Hoge Raad
                                                                            der Nederlanden (Supreme Court of the Netherlands) of
Reference has been made to the Court of Justice of the                      21 November 2003, received at the Court Registry on
European Communities by judgment of the Hoge Raad                           24 November 2003, for a preliminary ruling in the case
der Nederlanden (Supreme Court of the Netherlands) of                       of Intermodal Transports B.V. against Staatssecretaris van
21 November 2003, received at the Court Registry on                         Financiën on the following questions:
24 November 2003, for a preliminary ruling in the case of
Senior Engineering Investments B.V. against Staatssecretaris                1.    Should a national court refer questions on the interpret-
van Financiën on the following questions:                                         ation of the Combined Nomenclature (CN) (1) to the
                                                                                  Court of Justice of the European Communities for a
                                                                                  preliminary ruling in the case where a party to a dispute
1.     Does Article 4(2)(b) of Council Directive 69/335/EEC (1)                   brought before it concerning classification in the CN of a
       of 17 July 1969, as amended by Council Directive 85/                       certain product invokes a decision by a customs authority
       303/EEC (2) of 10 June 1985, permit capital duty to be                     laid down in binding tariff information issued to a third
       levied on a company in respect of a direct informal                        party in respect of a similar product and the national
       capital contribution made by the parent of that company                    court takes the view that that binding tariff information
       to a subsidiary of that company and, if so, what                           is at variance with the CN?
       circumstances are of relevance in that respect; in particu-
       lar is it relevant whether or not that company must be
       regarded, from an economic point of view, as the real                2.    Must heading 8709 of the CN be interpreted as covering
       recipient of that direct informal capital contribution?                    vehicles such as those in issue in the present case?
2.     Does the freedom of establishment laid down in                       (1) CN: Position under the Combined Nomenclature as referred to in
       Article 52 of the EC Treaty (now, after amendment,                       Article 1 of Council Regulation (EEC) No 2658/87 of 23 July
       Article 43 EC), in conjunction with Article 58 of the EC                 1987 on the tariff and statistical nomenclature and on the
       Treaty (now Article 48 EC), prohibit the tax authorities                 Common Customs Tariff, OJ 1987 L 256.
       of a Member State from pursing a policy which levies no
       capital duty on a company in respect of a direct informal
       capital contribution made by the parent of that company
       to a subsidiary of that company, provided that that
       subsidiary is established in that Member State, and is it
       relevant in this respect — on the assumption that the
       directive permits capital duty to be levied both on that
       company and its subsidiary in a case such as the present             Action brought on 24 November 2003 by the Com-
       — whether or not more capital duty has been levied at                mission of the European Communities against the French
       group level than would have been the case had both that                                           Republic
       company and its subsidiary been established in the
       Netherlands?
                                                                                                     (Case C-496/03)
(1) Council Directive 69/335/EEC of 17 July 1969 concerning                                           (2004/C 21/43)
    indirect taxes on the raising of capital (OJ L 249 of 3.10.1969,
    p. 25).
(2) Council Directive 85/303/EEC of 10 June 1985 amending Direc-
    tive 69/335/EEC concerning indirect taxes on the raising of capital
    (OJ L 156 of 15.6.1985, p. 23).                                         An action against the French Republic was brought before the
                                                                            Court of Justice of the European Communities on 24 Novem-
                                                                            ber 2003 by the Commission of the European Communities,
                                                                            represented by C.-F. Durand and F. Simonetti, acting as Agents,
                                                                            with an address for service in Luxembourg.
 ---pagebreak--- C 21/24                  EN                        Official Journal of the European Union                                       24.1.2004
The Commission of the European Communities claims that                     Pleas in law and main arguments
the Court should:
1.    Declare that, by failing to adopt and the laws, regulations
                                                                           The prohibition on the sale of food supplements by mail order,
      and administrative provisions necessary to comply with
                                                                           laid down in Paragraph 50(2) of the Gewerbeordnung, is a
      Commission Directive 2001/59/EC of 6 August 2001
                                                                           measure having equivalent effect to a quantitative restriction
      adapting to technical progress for the 28th time Council
                                                                           on imports. It constitutes a greater obstacle to the sale of
      Directive 67/548/EEC on the approximation of the laws,
                                                                           products from other Member States than to that of domestic
      regulations and administrative provisions relating to
                                                                           products. Such a prohibition on sales by mail order makes it
      the classification, packaging and labelling of dangerous
                                                                           necessary for traders from other Member States to establish a
      substances (1) and, in any event, by not communicating
                                                                           place of business in Austria or attract sales partners there
      them to the Commission, the French Republic has failed
                                                                           whereas Austrian traders in any case already have a fixed place
      to fulfil its obligations under that directive; and
                                                                           of business in Austria, which can be advantageous to them in
                                                                           marketing the food supplements manufactured by them.
2.    Order the French Republic to pay the costs.                          Austrian traders have the advantage of being able to use areas
                                                                           of the manufacturing premises or the premises on which their
                                                                           place of business is situated as a sales outlet also. This
                                                                           may represent a considerable cost advantage over foreign
                                                                           manufacturers as a result of the expenditure saved.
Pleas in law and main arguments
The time-limit for transposition of the directive expired on               The aims of the protection of consumers against health risks
30 July 2002.                                                              and misrepresentation, which are put forward in order to
                                                                           justify such a prohibition, may be achieved by more lenient
                                                                           means which restrict the free movement of goods to a lesser
(1) OJ L 225 of 21 August 2001, p. 1.                                      degree. The Austrian measure is thus a disproportionate
                                                                           restriction on the free movement of goods.
Action brought on 24 November 2003 by the Com-
mission of the European Communities against the Repub-
                             lic of Austria
                                                                           Reference for a preliminary ruling by the VAT and Duties
                                                                           Tribunals, London Tribunal Centre, by order of that court
                           (Case C-497/03)                                 dated 10 June 2003, in the case of 1) Kingscrest Associates
                                                                           Ltd, 2) Montecello Ltd (trading together as Kingscrest
                                                                           Residential Care Homes) against Commissioners of Cus-
                            (2004/C 21/44)                                                         toms and Excise
                                                                                                   (Case C-498/03)
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 November 2003 by the Commission of the European                                                  (2004/C 21/45)
Communities, represented by J. C. Schieferer and B. Schima,
with an address for service in Luxembourg.
The applicant claims that the Court should:
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by an order of the VAT and Duties
1.    hold that, by imposing in Paragraph 50(2) of the Gewer-              Tribunals, London Tribunal Centre, dated 10 June 2003, which
      beordnung a prohibition on the sale of food supplements              was received at the Court Registry on 26 November 2003, for
      by mail order, the Republic of Austria has failed to fulfil          a preliminary ruling in the case of 1) Kingscrest Associates Ltd,
      its obligations under Article 28 EC;                                 2) Montecello Ltd (trading together as Kingscrest Residential
                                                                           Care Homes) and Commissioners of Customs and Excise on
2.    order the Republic of Austria to pay the costs.                      the following questions: