CELEX: C2004/047/24
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-491/03: Reference for a preliminary ruling by the Hessischen Verwaltungsgerichtshofes by order of that Court of 1 October 2003 in the case of Volkswirt Weinschänken GmbH against Stadt Frankfurt am Main

C 47/14               EN                        Official Journal of the European Union                                          21.2.2004
3.   In assessing the amount of damages, in addition to the             2.   If the first question is answered in the affirmative: are
     restitution of sums charged in breach of Community                      Article 2(1) and Article 17 of the Sixth Directive to be
     rules, is the national court required (again as a matter of             interpreted as meaning that all services obtained in
     Community law) to award the injured party a sum by way                  connection with a listing on the stock market are to be
     of punitive damages against those persons responsible                   attributed to an exempt supply and that for that reason
     for the prohibited agreement or abuse of a dominant                     there is no right to a deduction of input tax?
     position?
4.   Does Community law also require the payment of                     3.   If the first question is answered in the negative: is there a
     damages for non-material loss?                                          right under Article 17(1) and (2) of the Sixth Directive to
                                                                             deduct input tax on the ground that the services in respect
                                                                             of which a deduction of input tax is claimed (advertising,
5.   As a matter of Community law, is the national court
                                                                             agent’s fees, and legal and technical advice) are used for
     required of its own motion to order the payment of
                                                                             the purposes of the undertaking’s taxable transactions?
     punitive damages or damages for non-material loss?
6.   Is the limitation period of one year for bringing an action
     for damages for breach of Articles 81 and 82 EC under              (1) OJ L 145, p. 1.
     Italian law too short and therefore in conflict with
     Community law?
7.   As a matter of Community law, for the purposes of the
     limitation period for bringing an action for damages,
     does time begin to run from the day on which the
     infringement of Articles 81 and 82 EC was committed or
     the day on which that infringement came to an end?
8.   Does Community law require national courts to disapply
     national rules in conflict with Community law or rather
     to interpret them so as to comply with Community law?              Reference for a preliminary ruling by the Hessischen
                                                                        Verwaltungsgerichtshofes by order of that Court of
                                                                        1 October 2003 in the case of Volkswirt Weinschänken
                                                                                   GmbH against Stadt Frankfurt am Main
                                                                                                 (Case C-491/03)
Reference for a preliminary ruling by the Unabhängigen
Finanzsenats der Außenstelle Linz by order of that Court
of 20 October 2003 in the case of Kretztechnik AG                                                 (2004/C 47/24)
                    against Finanzamt Linz
                        (Case C-465/03)
                                                                        Reference has been made to the Court of Justice of the
                         (2004/C 47/23)
                                                                        European Communities by order of the Hessischen Verwal-
                                                                        tungsgerichtshofes of 1 October 2003, received at the Court
                                                                        Registry on 20 November 2003, for a preliminary ruling in
                                                                        the case of Volkswirt Weinschänken GmbH against Stadt
Reference has been made to the Court of Justice of the                  Frankfurt am Main on the following questions:
European Communities by order of the Unabhängigen Fi-
nanzsenats der Außenstelle Linz of 20 October 2003, received
at the Court Registry on 5 November 2003, for a preliminary             1.   A local beverage duty bye-law defines as the subject-
ruling in the case of Kretztechnik AG against Finanzamt Linz                 matter of that duty ‘the sale of alcoholic beverages for
on the following questions:                                                  immediate consumption’, and as such a sale ‘any sale for
                                                                             consumption on the premises’. Is this duty another
1.   In becoming listed on a stock market and in issuing                     indirect tax on products subject to excise duty for the
     shares in that connection to new shareholders in return                 purposes of Article 3(1) and (2) of Council Directive
     for the issue price, does a public limited company                      92/12/EEC (1) of 25 February 1992 on the general
     make a supply for consideration within the meaning of                   arrangements for products subject to excise duty and on
     Article 2(1) of Sixth Council Directive 77/388/EEC of                   the holding, movement and monitoring of such products,
     17 May 1977 on the harmonisation of the laws of the                     or is it a tax on the supply of services relating to products
     Member States relating to turnover taxes — Common                       subject to excise duty, within the meaning of the second
     system of value added tax: uniform basis of assessment? (1)             subparagraph of Article 3(3) of Directive 92/12/EEC?
 ---pagebreak--- 21.2.2004                EN                        Official Journal of the European Union                                              C 47/15
2.     If the answer to the second alternative in question 1.                          failed to fulfil its obligations under Articles 4, 8 and
       above is in the affirmative:                                                    9 of Council Directive 75/442/EEC (1) on waste, as
                                                                                       amended by Directive 91/156/EEC. (2)
       Does the proviso ‘subject to the same proviso’ contained
       in the second subparagraph of Article 3(3) of Directive
       92/12/EEC refer, also on taxation of the supply of services         —     order the Hellenic Republic to pay the costs.
       relating to products subject to excise duty as defined by
       Article 3(1) of Directive 92/12/EEC, only to the condition
       laid down in the first subparagraph of Article 3(3) of that
       directive, namely ‘provided, however, that those taxes do
       not give rise to border-crossing formalities in trade               Pleas in law and main arguments
       between Member States’, or in such a case must ‘specific
       purposes’ for the tax, as laid down in Article 3(2) of the
       directive, also exist?                                              According to the most recent records (December 2002), 1458
                                                                           unlawful and uncontrolled waste tips are operating which
                                                                           receive waste from 47 % of the country’s population.
(1) OJ L 76, p. 1.
                                                                           The Greek authorities informed the Commission that the
                                                                           programme to reduce unlawful and uncontrolled waste dis-
                                                                           posal sites and their replacement with lawful landfill sites
                                                                           meeting public health requirements will only be completed at
                                                                           the end of 2007.
Action brought on 26 November 2003 by the Com-
mission of the European Communities against the Hel-                       The Commission considers that, inasmuch as it is allowing the
                           lenic Republic                                  unlawful and uncontrolled sites to operate on its territory, the
                                                                           Hellenic Republic is in breach of its obligations under
                                                                           Articles 4, 8 and 9 of Directive 75/442/EEC on waste, as
                          (Case C-502/03)                                  amended by Directive 91/156/EEC.
                           (2004/C 47/25)                                  (1) OJ L 194 of 25.07.1975, p. 39.
                                                                           (2) OJ L 78 of 26.3.1991, p. 32.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 26 Nov-
ember 2003 by the Commission of the European Communi-
ties, represented by M. Konstantinidis, of its Legal Service.
The Commission claims that the Court should:                               Action brought on 1 December 2003 (fax 26 November
                                                                           2003) by the Federal Republic of Germany against the
—      declare that, by failing to take all the measures necessary:                 Commission of the European Communities
       —     to ensure that waste is disposed of without
             endangering human health and without harming                                            (Case C-506/03)
             the environment,
                                                                                                      (2004/C 47/26)
       —     to prohibit the abandonment, dispοsal and uncon-
             trolled treatment of waste, to ensure that any holder
             of waste has it handled by a private or public waste
             collector or by an undertaking which carries out
             disposal, or disposes of it himself, in accordance            An action against the Commission of the European Communi-
             with the measures taken under Article 4,                      ties was brought before the Court of Justice of the European
                                                                           Communities on 1 December 2003 (fax 26 November 2003)
       —     to ensure that the establishments or undertakings             by the Federal Republic of Germany, represented by Wolf-
             which carry out disposal operations operate under a           Dieter Plessing, Ministerialrat in the Federal Ministry of Finance,
             permit from the competent authority or under a                and Christoph von Donat, Rechtsanwalt, with an address for
             permit which meets the legal requirements, has                service at the Federal Ministry for Finance, Berlin (Germany).