CELEX: C1996/180/51
Language: en
Date: 1996-06-22 00:00:00
Title: Reference for a preliminary ruling from the Tribunal de Grande Instance, Paris, by judgment of that court of 23 February 1996 in the case of The Scotch Whisky Association v. La Martiniquaise LM, now called Compagnie Financière Européenne de Prises de Participation (Cofepp), Prisunic SA, Centrale d'Achats et de Services Alimentaires SARL (Casal) (Case C-136/96)

22 . 6 . 96           EN                 Official Journal of the European Communities                               No C 180/23
Action brought on 24 April 1996 by the Commission of the            implemented system of declaration can perform that
   European Communities against the Kingdom of Spain                function perfectly well .
                       ( Case C-134/96 )
                                                                    (') OJ No L 178 , 8 . 7. 1988 , p . 5 .
                         ( 96/C 180/49 )
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on
                                                                    Action brought on 24 April 1996 by the Commission of the
24 April 1996 by the Commission of the European                      European Communities against the Kingdom of Belgium
Communities, represented by Antonio Caeiro and Miguel
Diaz-Llanos La Roche, Legal Advisers, with an address for                                     Case C-135/96 )
service in Luxembourg at the office of Carlos Gomez de la                                      (96/C 180/50 )
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                    An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities on
The applicant claims that the Court should :                        24 April 1996 by the Commission of the European
                                                                    Communities , represented by Hendrik van Lier and
1 , declare that, by making subject to an administrative            Jean-Francis Pasquier, acting as Agents, with an address for
     authorization the physical exportation of money in             service in Luxembourg at the office of Carlos Gômez de la
     cash, notes or bearer cheques in pesetas for foreign           Cruz, Wagner Centre, Kirchberg.
     currency in an amount exceeding Pta 5 million, the
     Kingdom of Spain has failed to fulfil its obligations          The Commission of the European Communities claims that
     under Council Directive 88/361 /EEC ( 1 ) and, as from         the Court should :
     1 January 1994 , Articles 73b and 73d of the EC
     Treaty;                                                        — declare that, by failing within the prescribed period to
                                                                        adopt the laws , regulations and administrative measures
                                                                        necessary in order to comply with Commission Directive
2 , order the Kingdom of Spain to pay the costs .                       91 /659/EEC adapting to technical progress Annex I to
                                                                        Council Directive 76/769/EEC on the approximation of
Fleas in law and main arguments                                         the laws, regulations and administrative provisions of
                                                                        the Member States relating to restrictions on the
                                                                        marketing and use of certain dangerous substances and
Since Directive 88/361 /EEC does not set any specific limits,
                                                                        preparations ( asbestos ) ('), the Kingdom of Belgium has
the free movement of capital must be interpreted in the
                                                                        failed to fulfil its obligations under the Treaty,
broadest sense possible and not otherwise . That
interpretation may be extracted from the wording of the             — order the Kingdom of Belgium to pay the costs .
introduction to the nomenclature in Annex I to the
Directive . That conclusion is corroborated by the wording          Pleas in law and main arguments
of the new Article 73b of the EC Treaty which prohibits all
restrictions on the movement of capital between Member              The mandatory nature of the provisions of the third
States and between Member States and third countries .              paragraph of Article 189 of the EC Treaty is such as to
Article 73d 1 ( b ) nonetheless explains that Article 73b is to     oblige Member States to whom directives are addressed to
be without prejudice to the right of Member States to apply         adopt the measures necessary for the implementation of
the requisite measures to prevent infringement of national          such directives within the time limit prescribed therein. The
law and regulations, in particular in the field of taxation and     time limit in question expired, on 1 January 1993 but the
prudential supervision of financial institutions, or to lay         Kingdom of Belgium has not adopted the necessary
down procedures for the declaration of capital movements            measures .
for purposes of administrative or statistical information, or
to take measures which are justified on grounds of public           (') OJ No L 363 , 31 . 12 . 1991 , p . 36 .
policy or public security. The concept of 'requisite measure'
meets the requirement of proportionality which must
characterize any measure which involves an exception to a
freedom recognized by the Treaty .
                                                                    Reference for a preliminary ruling from the Tribunal de
                                                                    Grande Instance, Paris, by judgment of that court of
The Spanish authorities allege tax fraud, terrorism and             23 February 1996 in the case of The Scotch Whisky
money laundering, which is often linked to drugs                    Association v. La Martiniquaise LM, now called
trafficking, that is to say, problems which affect all the          Compagnie Financière Européenne de Prises de
Member States and which constitute a real public order              Participation ( Cofepp ), Prisunic SA, Centrale d'Achats et de
threat in those States . Once it is acknowledged that the                        Services Alimentaires SARL ( Casai )
objective is lawful, in order to ascertain whether the
requirement of authorization is proportional , methods of                                    ( Case C- 1 3 6/96 )
supervision which allow the objective itself of preventing                                     ( 96/C 180/51 )
infringement of national law and regulations, but which
hinder to a lesser extent movements of capital should be            Reference has been made to the Court of Justice of the
considered . The Commission is of the view that a properly          European Communities by a judgment of the Tribunal de
 ---pagebreak---  No C 180/24              EN                    Official Journal of the European Communities                                          22 . 6 . 96
 Grande Instance ( Regional Court), Paris, of 23 February                   Communities on 25 April 1996 by the Commission of the
  1996 , which was received at the Court Registry on 25 April               European Communities, represented by Klaus-Dieter
  1996 , for a preliminary ruling in the case of The Scotch                Borchardt, of its Legal Service, with an address for service in
 Whisky Association v. La Martiniquaise LM, now called                      Luxembourg at the office of Carlos Gomez de la Cruz, of the
 Compagnie Financière Européenne de Prises de                              Legal Service, Wagner Centre C 254, Kirchberg.
 Participation ( Cofepp ), Prisunic SA, Centrale d'Achats et de
 Services Alimentaires SARL ( Casai ) on the following                     The applicant claims that the Court should :
 question:
                                                                            1 , declare that, by failing within the prescribed period to
 Having regard to European rules, in particular Article 5 of                      adopt the measures necessary in order to comply with
 Council Regulation ( EEC ) No 1576/89 of 29 May 1989 i 1 ),                      Directive 92/116/EEC ( 1 ), the Federal Republic of
 may the generic term 'whisky' be included in the trade name                      Germany has failed to fulfil its obligations under the EC
 of spirit drinks consisting entirely of whisky diluted with                      Treaty and under that Directive;
 water, so that the alcoholic strength by volume is less than
 40° ?
                                                                           2 , order the defendant to pay the costs.
 C ) OJ No L 160, 12 . 6 . 1989 , p . 1 .
                                                                           Pleas in law and main arguments .
                                                                           The pleas in law and main arguments are the same as those
                                                                           in Case C-135/96 ( 2 ), the time limit for transposition expired
 Action brought on 24 April 1996 by the Commission of the                  on 1 January 1994 .
 European Communities against the Federal Republic of
                                  Germany                                  (') OJ No L 62 , 1993 , p . 1 .
                            ( Case C-137/96 )                              ( 2 ) See p . 23 of this Official Journal .
                               ( 96/C 180/52 )
An action against the Federal Republic of Germany was
 brought before the Court of Justice of the European
 Communities on 24 April 1 996 by the Commission of the
 European Communities, represented by Klaus-Dieter                        Reference for a preliminary ruling from the
 Borchardt, of its Legal Service, with an address for service in          Bundesfinanzhof by order of that court of 14 March 1996 in
Luxembourg at the office of Carlos Gômez de la Cruz, of the               the case of Finanzamt Osnabriick-Land v. Bernhard
Legal Service, Wagner Centre C 254 , Kirchberg.                                                            Langhorst
                                                                                                       Case C-141 /96 )
The applicant claims that the Court should :                                                            ( 96/C 180/54 )
 1 , declare that, by failing within the prescribed period to
       adopt the measures necessary in order to comply with               Reference has been made to the Court of Justice of the
       Directive 91 /414/EEC ('), the Federal Republic of                 European Communities by an order of the Fifth Senate of
       Germany has failed to fulfil its obligations under the EC          the Bundesfinanzhof ( Federal Finance Court) of 14 March
       Treaty and under that Directive;                                    1996 , which was received at the Court Registry on 29 April
                                                                           1996 , for a preliminary ruling in the case of Finanzamt
2 , order the defendant to pay the costs .                                Osnabriick-Land v. Bernhard Langhorst on the following
                                                                          questions :
Pleas in law and main arguments
The pleas in law and main arguments are the same as those                  1 . Is it permissible under Article 22 ( 3 ) (c ) of the Sixth
in Case C-135/96 ( 2 ); the time limit for transposition expired                 Council Directive 77/388/EEC of 17 May 1977 on the
on 27 July 1993 .                                                                harmonization of the laws of the Member States relating
                                                                                 to turnover taxes (the Sixth Directive ) ( J ) for a credit
(M OJ No L 230 , 1991 , p . 1 .                                                  note within the meaning of paragraph 14 ( 5 ) of the
( 2 ) See p . 23 of this Official Journal .                                      Umsatzsteuergesetz ( Law on turnover tax) 1980 to be
                                                                                 regarded as an invoice or other document serving as
                                                                                 invoice ( Article 21 ( 1 ) ( c ) of the Sixth Directive )?
Action brought on 25 April 1996 by the Commission of the                  2 . If the answer to Question 1 is affirmative : Is it
European Communities against the Federal Republic of                             permissible under Article 21 ( 1 ) (c ) of the Sixth Directive
                                  Germany                                        for a person who accepts a credit note showing a higher
                                                                                 amount of tax than that owed by reason of taxable
                           ( Case C- 1 3 8/96 )                                  transactions, and does not contradict in that respect the
                              ( 96/C 180/53 )                                    mention of tax in the credit note, to be regarded as a
                                                                                 person who mentions value-added tax on an invoice or
An action against the Federal Republic of Germany was                            other document serving as invoice and is therefore liable
brought before the Court of Justice of the European                              to pay that value added tax ?