CELEX: C1997/295/28
Language: en
Date: 1997-09-27 00:00:00
Title: Action brought on 30 July 1997 by the Commission of the European Communities against the French Republic (Case C-276/97)

C 295/ 18                   EN                Official Journal of the European Communities                                        27 . 9 . 97
4. Is the policy adopted by a Member State of excluding                          incurred, or certain to be incurred but uncertain as
     all women during peace time and/or in preparation for                       to amount or as to the date on which they will
     war, from service as interoperable marines capable of                       arise ( Article 20 ( 1 )),
     being excluded from the ambit of Council Directive
     76/207/EEC by virtue of the operation of Article 224 ?                  — provisions are not to be used to adjust the values
     If so, what guidelines or criteria should be applied in                     of assets ( Article 20 ( 3 )),
     order to determine whether the said policy may
     properly be so excluded from the ambit of Directive
                                                                             — account is to be taken of all foreseeable liabilities
     76/207/EEC by reason of Article 224 ?
                                                                                 and potential losses arising in the course of the
                                                                                 financial year concerned or of a previous one, even
5. Is the policy adopted by a Member State of excluding                          if such liabilities or losses become apparent only
                                                                                 between the date of the balance sheet and the date
     all women during peace time and/or in preparation for
     war from service as interoperable marines capable of                        on which it is drawn up ( Article 31 ( 1 ) (c ) ( bb )),
     being justified under Article 2 ( 2 ) of Council Directive
     76/207/EEC ?                                                            — the components of asset and liability items are to
                                                                                 be valued separately (Article 31 ( 1 ) ( e ) ) ,
6. If so, what is the test to be applied by a national                       — provisions are not to exceed in amount the sums
     tribunal when considering whether or not the                                which are necessary ( first paragraph of Article 42 ),
     application of the policy is justified ?
                                                                             where a building construction undertaking, which uses
(') Council Directive 76/207/EEC of 9 February 1976 on the
    implementation of the principle of equal treatment for men               subcontractors in addition to its own employees to
    and women as regards access to employment, vocational                    perform its contracts, does not make individual
    training and promotion, and working conditions ( OJ L 39,                provision, taking into account the individual liabilities
    14 . 2 . 1976 , p. 40 ).                                                 under warranties inherent in particular contracts, for
                                                                             indemnity liabilities not arising until after the date of
                                                                             the balance sheet, but makes global provision therefor
                                                                             by way of a fixed percentage of the turnover subject to
                                                                             warranties ?
                                                                         2 . If Question 1 is answered in the affirmative :
Reference for a preliminary ruling by the Finanzgericht
Koln by order of that court of 16 July 1997 in the case of
DE + ES Bauunternehmung GmbH against Finanzamt                               Subject to what preconditions, in accordance with
                                 Bergheim                                    what valuation criteria and in what percentage,
                             Case C-2 75/97 )                                possibly assessed by the business itself, may such
                                                                             global provision be made, regard also being had to
                              ( 97/C 295/27 )                                any rights of recourse against employees of the
                                                                             business and subcontractors, which are enforceable
                                                                             only to a limited extent, and, in the event of doubts as
                                                                             to the amount of the provision needed, who bears the
Reference has been made to the Court of Justice of the
                                                                             disadvantage of the fact that the matter is not
European Communities by order of the Thirteenth                              susceptible of proof?
Chamber of the Finanzgericht Koln ( Finance Court,
Cologne ) of 16 July 1997, received at the Court Registry
on 30 July 1997, for a preliminary ruling in the case of
DE + ES Bauunternehmung GmbH against Finanzamt
( Tax Office ) Bergheim on the following questions:
                                                                         Action brought on 30 July 1997 by the Commission of the
1 . Is there compliance with the accounting rules laid                       European Communities against the French Republic
     down by the Fourth Council Directive 78/660/EEC of
     25 July 1978 on annual accounts ( OJ L 222, 14 . 8 .                                        ( Case C-276/97 )
     1978 , p. 11 ), under which :                                                                 ( 97/C 295/28 )
     — the annual accounts are to give a true and fair
          view of the company's assets, liabilities, financial           An action against the French Republic was brought before
          position and profit or loss ( Article 2 ( 3 )),                the Court of Justice of the European Communities on
                                                                         30 July 1997 by the Commission of the European
                                                                         Communities, represented by Helene Michard and Enrico
     — provisions are intended to cover losses or debts the              Traversa , acting as Agents, with an address for service in
          nature of which is clearly defined and which at the            Luxembourg at the office of Carlos Gomez de la Cruz,
          date of the balance sheet are either likely to be              Wagner Centre, Kirchberg .
 ---pagebreak--- 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