CELEX: C2000/335/15
Language: en
Date: 2000-11-25 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 21 September 2000 in Case C-462/98 P: Mediocurso — Estabelecimento de Ensino Particular Ld.a Commission of the European Communities (Appeal — European Social Fund — Training programmes — Reduction of financial assistance — Rights of defence — Right to be heard)

C 335/8                   EN                     Official Journal of the European Communities                                        25.11.2000
                   JUDGMENT OF THE COURT                                          to other persons and to prevent him from adducing evidence in
                                                                                  order to refute any allegation that the charges have been passed
                                                                                  on.
                            (Fifth Chamber)
                       of 21 September 2000                                 (1) OJ C 33 of 6.2.1999.
in Joined Cases C-441/98 and C-442/98 (reference for a
preliminary ruling from the Diikitiko Protodikio, Thessa-
loniki): Kapniki Mikhailidis AE v Idrima Kinonikon
                         Asphaliseon (IKA) (1)
(Charges having equivalent effect — Tobacco exports —
         Levy imposed for the benefit of a social fund)
                                                                                              JUDGMENT OF THE COURT
                            (2000/C 335/14)
                                                                                                       (Fifth Chamber)
                      (Language of the case: Greek)                                                of 21 September 2000
(Provisional translation; the definitive translation will be published      in Case C-462/98 P: Mediocurso — Estabelecimento de
                     in the European Court Reports)                         Ensino Particular Ld.a Commission of the European Com-
                                                                                                          munities (1)
In Joined Cases C-441/98 and C-442/98: reference to the
Court under Article 177 of the EC Treaty (now Article 234                   (Appeal — European Social Fund — Training programmes
EC) from the Diikitiko Protodikio (Administrative Court of                  — Reduction of financial assistance — Rights of defence —
First Instance), Thessaloniki, Greece, for a preliminary ruling                                       Right to be heard)
in the proceedings pending before that court between Kapniki
Mikhailidis AE and Idrima Kinonikon Asphaliseon (IKA) — on                                             (2000/C 335/15)
the interpretation of Articles 9 and 12 of the EC Treaty (now,
after amendment, Articles 23 EC and 25 EC) and Article 16 of
the EC Treaty (repealed by the Treaty of Amsterdam) in respect
of charges having equivalent effect to customs duties and the                                 (Language of the case: Portuguese)
conditions in which a charge collected in breach of Community
law may be refunded — the Court (Fifth Chamber), composed
of: D.A.O. Edward, President of the Chamber, P.J.G. Kapteyn                 (Provisional translation; the definitive translation will be published
(Rapporteur), P. Jann, H. Ragnemalm and M. Wathelet, Judges;                                    in the European Court Reports)
N. Fennelly, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 21 September 2000, in
which it has ruled:                                                         In Case C-462/98 P: Mediocurso — Estabelecimento de Ensino
                                                                            Particular Ld.a established in Lisbon (Portugal), represented by
1.    An ad valorem charge on exported tobacco products, which is           C. Botelho Moniz, of the Lisbon Bar, with an address for
      not levied either on the same tobacco products when they are          service in Luxembourg at the Chambers of A. May, 398 Route
      sold on the domestic market or on those imported from another         d’Esch — appeal against the judgment of the Court of First
      Member State, cannot escape, by reason of its social objective,       Instance of the European Communities (Third Chamber) in
      classification as a charge having equivalent effect to a customs      Joined Cases T-180/96 and T-181/96 Mediocurso v Com-
      duty on exports that is incompatible with Articles 9 and 12 of        mission [1998] ECR II-3477, seeking to have that judgment
      the EC Treaty (now, after amendment, Articles 23 EC and 25            set aside, the other party to be proceedings being: Commission
      EC) and Article 16 of the EC Treaty (repealed by the Treaty of        of the European Communities, (Agent: M.T. Figueira and
      Amsterdam), unless the allegedly comparable charge levied on          K. Simonsson) — the Court (Fifth Chamber), composed of:
      domestic products is applied at the same rate, at the same            D.A.O. Edward, President of the Chamber, L. Sevón, P. Jann,
      marketing stage and on the basis of a chargeable event which is       H. Ragnemalm (Rapporteur) and M. Wathelet, Judges;
      identical to that giving rise to a charge on exports of the kind      J. Mischo, Advocate General; R. Grass, for the Registrar, has
      introduced by Greek Law No 2348/1953.                                 given a judgment on 21 September 2000, in which it:
2.    Although Community law does not preclude a Member State               1.    Sets aside the judgment of the Court of First Instance of the
      from refusing repayment of charges levied in breach of its                  European Communities of 15 September 1998 in Joined Cases
      provisions where it is established that repayment would entail              T-180/96 and T-181/96 Mediocurso v Commission with the
      unjust enrichment, it does preclude any presumption or rule of              exception of paragraph 2 of the operative part which partially
      evidence intended to shift to the trader concerned the burden of            upheld the action by Mediocurso — Estabelecimento de Ensino
      proving that the charges unduly paid have not been passed on                Particular Ld.a in Case T-180/96;
 ---pagebreak--- 25.11.2000               EN                      Official Journal of the European Communities                                             C 335/9
2.    Annuls Commission Decision C (96) 1185 of 14 August                         attested acts recording a transaction covered by the directive,
      1996 reducing the assistance granted in Decision C (89) 0570                under a system where notaries are employed by the State and
      of 22 March 1989 and Commission Decision C (96) 1186 of                     the charges in question are paid in part to that State for the
      14 August 1996 reducing the assistance granted in Decision                  financing of its official business.
      C (89) 0570 of 22 March 1989;
                                                                            2.    A charge payable for drawing up a notarially attested act
3.    Orders the Commission to pay the costs of the proceedings                   recording an increase in the share capital or an amendment to
      before both the Court of First Instance and the Court of Justice.           the statutes of a capital company is, where it amounts to a tax
                                                                                  for the purposes of Directive 69/335, as amended by Directive
                                                                                  85/303, in principle prohibited under Article 10(c) thereof.
(1) OJ C 71 of 13.3.1999.
                                                                            3.    ‘Fees or dues’ within the meaning of Article 12(1)(e) of Directive
                                                                                  69/335, as amended by Directive 85/303, do not cover a
                                                                                  charge collected for drawing up a notarially attested act
                                                                                  recording an increase in the share capital or an amendment to
                                                                                  the statutes of a capital company, such as the charge at issue in
                                                                                  the main proceedings, the amount of which increases in direct
                                                                                  proportion to the share capital raised and in respect of which
                  JUDGMENT OF THE COURT                                           there is no upper limit.
                                                                            4.    Article 10 of Directive 69/335, as amended by Directive
                         (Fourth Chamber)                                         85/303, creates rights on which individuals may rely in
                                                                                  proceedings before the national courts.
                      of 21 September 2000
                                                                            (1) OJ C 86 of 27.3.1999.
in Case C-19/99 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Modelo Continen-
                te SGPS SA v Fazenda Pública (1)
(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Charge for drawing up a notarially attested act                                     JUDGMENT OF THE COURT
recording an increase in the share capital of a capital
          company and an amendment to its statutes)                                                   (Fourth Chamber)
                                                                                                   of 21 September 2000
                           (2000/C 335/16)
                                                                            in Case C-124/99 (reference for a preliminary ruling from
                                                                            the Sozialgericht, Münster): Carl Borawitz v Landesver-
                  (Language of the case: Portuguese)                                         sicherungsanstalt Westfalen (1)
                                                                            (Social security for migrant workers — Equal treatment —
(Provisional translation; the definitive translation will be published      National legislation fixing, in connection with the transfer
                    in the European Court Reports)                          abroad of retroactive pension payments, a higher minimum
                                                                                       amount than that paid within the country)
In Case C-19/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal                                            (2000/C 335/17)
Administrativo, Portugal, for a preliminary ruling in the
proceedings pending before that court between Modelo Conti-
                                                                                                 (Language of the case: German)
nente SGPS SA and Fazenda Pública, in the presence of
Ministério Público — on the interpretation of Articles 4(3), 10
and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969                (Provisional translation; the definitive translation will be published
concerning indirect taxes on the raising of capital (OJ, English                                 in the European Court Reports)
Special Edition 1969 (II), p. 412), as amended by Council
Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23)                 In Case C-124/99: reference to the Court under Article 177 of
— the Court (Fourth Chamber), composed of: D.A.O. Edward,                   the EC Treaty (now Article 234 EC) from the Sozialgericht,
President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm                   Münster, Germany, for a preliminary ruling in the proceedings
(Rapporteur), Judges; G. Cosmas, Advocate General; R. Grass,                pending before that court between Carl Borawitz and Landes-
Registrar, has given a judgment on 21 September 2000, in                    versicherungsanstalt Westfalen, joined party: Bundesrepublik
which it has ruled:                                                         Deutschland — on the interpretation of Community law in
                                                                            matters of social security, in particular the principle of equal
1.    Council Directive 69/335/EEC of 17 July 1969 concerning               treatment — the Court (Fourth Chamber), composed of:
      indirect taxes on the raising of capital, as amended by Council       D.A.O. Edward (Rapporteur), President of the Chamber, P.J.G.
      Directive 85/303/EEC of 10 June 1985, must be interpreted             Kapteyn and A. La Pergola, Judges; P. Léger, Advocate General;
      as meaning that charges constitute taxes for the purposes of the      R. Grass, Registrar, has given a judgment on 21 September
      directive where they are collected for drawing up notarially          2000, in which it has ruled: