CELEX: C1998/055/23
Language: en
Date: 1998-02-20 00:00:00
Title: JUDGMENT OF THE COURT (Second Chamber) of 15 January 1998 in Case C-37/95 (reference for a preliminary ruling from the Belgian Hof van Cassatie): Belgian State v. Ghent Coal Terminal NV (Value added tax - Sixth VAT Directive - Article 17 - Right to deduct - Adjustment of deductions)

C 55/12              EN                    Official Journal of the European Communities                                      20.2.98
              JUDGMENT OF THE COURT                                   State), Belgium, for a preliminary ruling in the proceedings
                        (First Chamber)                               pending before that court between Ballast Nedam Groep
                                                                      NV and Belgian State Ð on the interpretation of the
                    of 18 December 1997                               judgment of the Court of 14 April 1994 in Case C-389/92
in Case C-309/96 (reference for a preliminary ruling from             Ballast Nedam Groep [1994] ECR I-1289 Ð the Court
the Pretura Circondariale di Roma, Sezione Distaccata di              (Third Chamber), composed of: J. C. Moitinho de
Tivoli): Daniele Annibaldi v. Sindaco del Comune di                   Almeida, acting for the President of the Chamber, J.-P.
           Guidonia, Presidente Regione Lazio (1)                     Puissochet (Rapporteur) and L. Sevón, Judges; A. La
                                                                      Pergola, Advocate-General; R. Grass, Registrar, has given
(Agriculture Ð Nature and archaeological park Ð                       a judgment on 18 December 1997, in which it has ruled:
Economic activity Ð Protection of fundamental rights Ð
              Lack of jurisdiction of the Court)
                          (98/C 55/21)                                Council Directive 71/304/EEC of 26 July 1971 concerning
                                                                      the abolition of restrictions on freedom to provide services
                (Language of the case: Italian)                       in respect of public works contracts and on the award of
                                                                      public works contracts to contractors acting through
                                                                      agencies or branches and Council Directive 71/305/EEC
  (Provisional translation; the definitive translation will be
                                                                      of 26 July 1971 concerning the coordination of procedures
         published in the European Court Reports)
                                                                      for the award of public works contracts are to be
                                                                      interpreted as meaning that the authority competent to
In Case C-309/96: reference to the Court under Article 177            decide on an application for registration submitted by a
of the EC Treaty from the Pretura Circondariale di Roma,              dominant legal person of a group is under an obligation,
Sezione Distaccata di Tivoli (Rome District Magistrates'              where it is established that that person actually has
Court, Tivoli Division), for a preliminary ruling in the              available to it the resources of the companies belonging to
proceedings pending before that court between Daniele                 the group that are necessary to carry out the contracts, to
Annibaldi and Sindaco del Comune di Guidonia,                         take account of the references of those companies in
Presidente Regione Lazio Ð on the interpretation of                   assessing the suitability of the legal person concerned, in
Article 40(3) of the EC Treaty and of the general                     accordance with the criteria mentioned in Articles 23 to
principles of Community law Ð the Court (First                        28 of Directive 71/305/EEC.
Chamber), composed of: D. A. O. Edward (Rapporteur),
acting for the President of the First Chamber, P. Jann and
L. Sevón, Judges; G. Cosmas, Advocate-General; R. Grass,              (1) OJ C 74, 8.3.1997.
Registrar, has given a judgment on 18 December 1997, in
which it has ruled:
The Court has no jurisdiction to answer the questions
referred by the Pretura Circondariale di Roma.
(1) OJ C 336, 9.11.1996.                                                             JUDGMENT OF THE COURT
                                                                                             (Second Chamber)
                                                                                           of 15 January 1998
                                                                      in Case C-37/95 (reference for a preliminary ruling from
                                                                      the Belgian Hof van Cassatie): Belgian State v. Ghent Coal
              JUDGMENT OF THE COURT                                                           Terminal NV (1)
                       (Third Chamber)
                                                                      (Value added tax Ð Sixth VAT Directive Ð Article 17 Ð
                    of 18 December 1997                                      Right to deduct Ð Adjustment of deductions)
in Case C-5/97 (reference for a preliminary ruling from
                                                                                                (98/C 55/23)
the Raad van State, Belgium): Ballast Nedam Groep NV
                      v. Belgian State (1)
(Freedom to provide services Ð Public-works contracts Ð                               (Language of the case: Dutch)
Registration of contractors Ð Entity to be taken into
                            account)
                          (98/C 55/22)
                                                                        (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
                (Language of the case: Dutch)
  (Provisional translation; the definitive translation will be        In Case C-37/95: reference to the Court under Article 177
         published in the European Court Reports)                     of the EC Treaty from the Belgian Hof van Cassatie
                                                                      (Court of Cassation), for a preliminary ruling in the
In Case C-5/97: reference to the Court under Article 177              proceedings pending before that court between Belgian
of the EC Treaty from the Raad van State (Council of                  State and Ghent Coal Terminal NV Ð on the
 ---pagebreak--- 20.2.98              EN                   Official Journal of the European Communities                                      C 55/13
interpretation of Article 17 of the Sixth Council Directive          freedom of movement for workers within the Community
77/388/EEC of 17 May 1977 on the harmonisation of the                (OJ, English Special Edition 1968 (II), p. 475) Ð the
laws of the Member States relating to turnover taxes Ð               Court, composed of: C. Gulmann, President of the Third
Common system of value added tax: uniform basis of                   and Fifth Chambers, acting for the President, H.
assessment (OJ L 145, 13.6. 1977, p. 1) Ð the Court                  Ragnemalm, M. Wathelet and R. Schintgen (Presidents of
(Second Chamber), composed of: H. Ragnemalm,                         Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
President of the Sixth Chamber, acting as president of the           P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward
Second Chamber, G. F. Mancini (Rapporteur) and G.                    (Rapporteur), J.-P. Puissochet, G. Hirsch, P. Jann and L.
Hirsch, Judges; D. Ruiz-Jarabo Colomer, Advocate-                    Sevón, Judges; F. G. Jacobs, Advocate-General; L.
General; H. A. Rühl, Principal Administrator, for the                Hewlett, Administrator, for the Registrar, has given a
Registrar, has given a judgment on 15 January 1998, in               judgment on 15 January 1998, in which it has ruled:
which it has ruled:
                                                                     1. Article 48 of the EC Treaty and Article 7(1) and (4) of
Article 17 of the Sixth Council Directive 77/388/EEC of                   Regulation (EEC) No 1612/68 of the Council of
17 May 1977 on the harmonisation of the laws of the                       15 October 1968 on freedom of movement for
Member States relating to turnover taxes Ð Common                         workers within the Community preclude a clause in a
system of value added tax: uniform basis of assessment                    collective agreement applicable to the public service of
must be construed as allowing a taxable person acting as                  a Member State which provides for promotion on
such to deduct the VAT payable by him on goods or                         grounds of seniority for employees of that service after
services supplied to him for the purpose of investment                    eight years' employment in a salary group determined
work intended to be used in connection with taxable                       by that agreement without taking any account of
transactions. The right to deduct remains acquired where,                 previous periods of comparable employment
by reason of circumstances beyond his control, the taxable                completed in the public service of another Member
person has never made use of those goods or services for                  State.
the purpose of carrying out taxable transactions. A supply
of investment goods during the adjustment period, where
such occurs, may give rise to an adjustment of the                   2. A clause in a collective agreement entailing
deduction under the conditions set out in Article 20(3) of                discrimination contrary to Article 48 of the Treaty and
Directive 77/388/EEC.                                                     to Article 7(1) of Regulation (EEC) No 1612/68 is
                                                                          null and void by virtue of Article 7(4) of that
                                                                          Regulation. Without requiring or waiting for that
(1) OJ C 101, 22.4.1995.
                                                                          clause to be abolished by collective negotiation or by
                                                                          some other procedure, the national court must
                                                                          therefore apply the same rules to the members of the
                                                                          group disadvantaged by that discrimination as those
                                                                          applicable to the other workers.
              JUDGMENT OF THE COURT                                  (1) OJ C 64, 2.3.1996.
                     of 15 January 1998
in Case C-15/96 (reference for a preliminary ruling from
the Arbeitsgericht Hamburg): Kalliope Schöning-
   Kougebetopoulou v. Freie und Hansestadt Hamburg (1)
(Freedom of movement for persons Ð Collective                                       JUDGMENT OF THE COURT
agreement applicable to public sector employees Ð
Promotion on grounds of seniority Ð Professional                                          of 15 January 1998
       experience acquired in another Member State)                  in Case C-44/96 (reference for a preliminary ruling from
                         (98/C 55/24)                                the Bundesvergabeamt): Mannesmann Anlagenbau Austria
                                                                        AG and Others v. Strohal Rotationsdruck GesmbH (1)
               (Language of the case: German)                        (Public procurement Ð Procedure for the award of public
                                                                     works contracts Ð State printing office Ð Subsidiary
                                                                                     pursuing commercial activities)
  (Provisional translation; the definitive translation will be                                (98/C 55/25)
         published in the European Court Reports)
                                                                                    (Language of the case: German)
In Case C-15/96: reference to the Court under Article 177
of the EC Treaty from the Arbeitsgericht (Labour Court)
Hamburg, Germany, for a preliminary ruling in the                      (Provisional translation; the definitive translation will be
proceedings pending before that court between Kalliope                         published in the European Court Reports)
Schöning-Kougebetopoulou and Freie und Hansestadt
Hamburg Ð on the interpretation of Article 48 of the EC
Treaty and Article 7(1) and (4) of Regulation (EEC)                  In Case C-44/96: reference to the Court under Article 177
No 1612/68 of the Council of 15 October 1968 on                      of the EC Treaty from the Bundesvergabeamt (Federal