CELEX: C2003/304/24
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-437/03: Action brought on 17 October 2003 by the Commission of the European Communities against the Republic of Austria

C 304/16                EN                         Official Journal of the European Union                                           13.12.2003
      —     if the goods cannot lawfully be placed on the market           The Commission claims that the Court should:
            because they are stolen goods and/or contraband?
                                                                           1.     declare that by granting Austrian dentists the possibility
2.    Is the answer to the first question different if the goods in               in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on
      question are products subject to excise duty and in                         Dentists) of engaging in their occupation under the title
      particular manufactured tobaccos?                                           ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’ and of making use of
                                                                                  the exception laid down in Article 19b of Council
                                                                                  Directive 78/686/EEC of 25 July 1978 (1), although the
3.    If no excise duty is charged on products which are subject                  dentists do not meet the minimum requirements under
      to excise duty, is it compatible with the provisions of the                 Article 1 of Council Directive 78/687/EEC of 25 July
      Sixth VAT Directive to charge VAT in such a case?                           1978 (2) for falling within the provisions of Directives
                                                                                  78/686/EEC and 78/687/EEC, the Republic of Austria
                                                                                  has failed to fulfil its obligations under Articles 1 and 19b
4.    May Member States supplement the categories of trans-
                                                                                  of Directive 78/686/EEC and Article 1 of Directive 78/
      action subject to VAT if they lodge a notification, as
                                                                                  687/EEC;
      referred to in Article 27(2) or Article 27(5) of the Sixth
      VAT Directive, of their intention to charge VAT at
      national level in the event of theft of products subject to          2.     declare that by allowing, pursuant to Paragraphs 17
      excise duty from a tax warehouse, or is Article 2 of the                    and 23 of the Ärztegesetz (Law on Doctors), Austrian
      Sixth VAT Directive exhaustive?                                             ‘specialists in dental, oral and maxillo-facial surgery’ to
                                                                                  continue, in breach of Article 19b of Directive 78/686/
                                                                                  EEC, to engage in their occupation under the title
5.    If a notification as referred to in Article 27(5) of the Sixth              ‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ (special-
      VAT Directive relates only to the prepayment of VAT by                      ists in dental, oral and maxillo-facial surgery) and by
      means of fiscal stamps, may a Member State supplement                       those specialists not being placed on the same footing as
      the categories of transaction subject to VAT by, for                        dentists inasmuch as specialists in dental, oral and
      example, requiring the payment of VAT where products                        maxillo-facial surgery are entitled to engage in their
      subject to excise duty have been stolen from a tax                          activities under the same conditions as holders of dip-
      warehouse?                                                                  lomas, certificates or other evidence of formal qualifi-
                                                                                  cations in accordance with Annex A (dentists), the
                                                                                  Republic of Austria has failed to fulfil its obligations
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the                      under Articles 1 and 19b of Directive 78/686/EEC;
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform             3.     order the Republic of Austria to pay the costs.
    basis of assessment (OJ L 145 of 13.6.1977, p. 1).
                                                                           Pleas in law and main arguments
                                                                           1. D e n t i s t s
Action brought on 17 October 2003 by the Commission
                                                                           Austrian legislation has created a ‘new category of dentists’
of the European Communities against the Republic of
                                                                           which is not provided for in the directives. Although Austria
                               Austria
                                                                           recognises that the situation is contrary to Community law, it
                                                                           keeps it unchanged and continues to grant ‘dentists’ the right
                                                                           to engage in their occupation under the professional title
                          (Case C-437/03)                                  ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’, and enables the Dentistenk-
                                                                           ammer (professional association of dentists) to issue certificates
                                                                           under Article 19b of Directive 78/686/EEC.
                         (2003/C 304/24)
                                                                           2. S p e c i a l i s t s i n d e n t a l , o r a l a n d m a x i l l o -
                                                                                 facial surgery
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
17 October 2003 by the Commission of the European                          Austrian legislation distinguishes between, on the one hand,
Communities, represented by Dr Claudia Schmidt, Christina                  ‘doctors’, which includes ‘dentists’ and, on the other, ‘special-
Tufvesson and Andreas Manville, with an address for service                ists’, which includes ‘specialists in dental, oral and maxillo-
in Luxembourg.                                                             facial surgery’. Persons from other Member States who fall
 ---pagebreak--- 13.12.2003              EN                           Official Journal of the European Union                                             C 304/17
within Directive 78/686/EEC are at a disadvantage in Austria                       the Kingdom of the Netherlands has failed to fulfil its
because they must use the professional title ‘dentist’ there,                      obligations under Article 18(1) of Directive 79/409/EEC,
while they are in direct competition with ‘specialists in dental,                  or has failed to fulfil its obligations under Article 23(1) of
oral and maxillo-facial surgery’. Furthermore, nationals of                        Directive 92/43/EEC to comply with the directive;
other Member States staying in Austria must be able to rely on
an unambiguous title. Otherwise uncertainty is created which                 —     declare that Article 13(3) of the Natuurbeschermingswet
could harm all patients from the Community. Since a ‘specialist                    (law on the protection of nature) is contrary to Article 6(4)
in dental, oral and maxillo-facial surgery’ is regarded under the                  of Directive 92/43/EEC;
contested Law as a ‘specialist’ and a ‘dentist’ is regarded as a
‘doctor’, it is clear that a specialist falling within Article 19b of
Directive 78/686/EEC does not practice under the same                        —     order the Kingdom of the Netherlands to pay the costs.
conditions as a ‘dentist’.
(1) OJ L 233, 24.8.1978, p. 1.
(2) OJ L 233, 24.8.1978, p. 10.
                                                                             Pleas in law and main arguments
                                                                             Although the Commission can in principle accept the measures
                                                                             which the Netherlands has proposed in order to remedy the
                                                                             failure found by the Commission in its formal notice of default,
                                                                             the Commission must find that at the present time the
                                                                             Netherlands is still in default since the proposed measures have
                                                                             not yet been adopted or brought into force.
Action brought on 15 October 2003 by the Commission
of the European Communities against the Kingdom of the
                                                                             (1) OJ L 103 of 25 April 1979, p. 1.
                             Netherlands                                     (2) OJ L 206 of 22 July 1992, p. 7.
                           (Case C-441/03)
                           (2003/C 304/25)
                                                                             Reference for a preliminary ruling by the Hoge Raad der
An action against the Kingdom of the Netherlands was brought
                                                                             Nederlanden by judgment of that Court of 17 October
before the Court of Justice of the European Communities on
                                                                             2003 in the case of Götz Leffler against Berlin Chemie
15 October 2003 by the Commission of the European
                                                                                   AG, a company incorporated under German law
Communities, represented by M. van Beek, as agent.
                                                                                                         (Case C-443)
The applicant claims that the Court should:
—    declare that by failing to bring into force the laws,                                             (2003/C 304/26)
     regulations and administrative provisions in order to:
     —      fulfil the obligations of the Kingdom of the Nether-
            lands under Article 4(1) and (2) of the Council                  Reference has been made to the Court of Justice of the
            Directive of 2 April 1979 on the conservation of                 European Communities by judgment of the Hoge Raad der
            wild birds (79/409/EEC) (1), or in any event by failing          Nederlanden (Supreme Court of the Netherlands) of 17 Octo-
            to inform the Commission of those provisions, and                ber 2003, received at the Court Registry on 20 October 2003,
                                                                             for a preliminary ruling in the case of Götz Leffler against
                                                                             Berlin Chemie AG, a company incorporated under German
     —      fulfil the obligations of the Kingdom of the Nether-
                                                                             law on the following questions:
            lands under Article 6(1), in conjunction with
            Article 2(1) and Article 1(a), (e) and (i), and
            Articles 6(2), (3) and (4), 7, 11, 14(1) and (2), and            1.    Must Article 8(1) of the Regulation (1) be construed as
            15 of Directive 92/43/EEC of 21 May 1992 on the                        meaning that, in the event of refusal by an addressee to
            conservation of natural habitats and of wild fauna                     accept a document on the ground of failure to comply
            and flora, (2) or in any event by failing to inform the                with the language requirement laid down in Article 8(1),
            Commission thereof,                                                    it is possible for the sender to rectify that failure?