CELEX: C1998/055/35
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 18 December 1997 by the Commission of the European Communities against the French Republic (Case C-429/97)

C 55/18                EN                Official Journal of the European Communities                                   20.2.98
Regulation No 17 which was adopted to implement                     Reference for a preliminary ruling by the Bundesfinanzhof
Article 86; (ii) infringement of Article 173; and (iii) breach      by order of that court of 2 October 1997 in the case of
of essential procedural requirements.                               Sarclad International Ltd, Wittington, Chesterfield, United
                                                                           Kingdom, against the Bundesamt für Finanzen
Pleas in law and main arguments adduced in support:                                        (Case C-428/97)
                                                                                             (98/C 55/34)
Ð Error in classification
    Ð Erroneous interpretation of Regulation No 17.
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by order of the Bundesfinanzhof
    Ð Erroneous interpretation of Article 169 of the EC             (Federal Finance Court) of 2 October 1997, received at
        Treaty: in order for Article 169 concerning failure         the Court Registry on 18 December 1997, for a
        of a Member State to fulfil obligations to apply, it        preliminary ruling in the case of Sarclad International Ltd,
        is not sufficient that a failure to comply with            Wittington, Chesterfield, United Kingdom, against the
        Directive 93/38' is concerned and was expressly             Bundesamt für Finanzen (Federal Finance Office) on the
        referred to in the complaint, since the complaint           following question:
        was directed only at the conduct of the contracting
        entity, both as regards competition and free
        movement of goods.
                                                                    Is Article 3(a) of the eighth Council Directive 79/1072/
                                                                    EEC of 6 December 1979 on the harmonisation of the
        Nor does the Court of First Instance establish that
                                                                    laws of the Member States relating to turnover taxes (1) to
        the procedure followed by the Commission was
                                                                    be interpreted as meaning:
        appropriate by citing the case-law of the Court of
        Justice according to which acts of contracting
        entities are imputable to the Member States to
        which those entities belong. If that case-law is            Ð that the duplicate of a substitute document may also
        applied to the present case, the SNCB has no                    be regarded as the original import document or the
        liability, contrary to the principle set out in                 Member States are allowed in some circumstances to
        Article 222 of the Treaty, even though the same                 treat the duplicate as the original import document, or
        misconduct could be raised against a private
        undertaking.
                                                                    Ð that taxable persons not established in the territory of
    Ð Misinterpretation of the concept of an act against                the country Ð who are covered by the eighth
        which proceedings may be brought.                               Directive 79/1072/EEC Ð are definitively precluded
                                                                        from asserting their right to deduct input tax if the
Ð Breach of essential procedural requirements                           import document originally issued has been lost before
                                                                        the application for a refund of the value added tax is
                                                                        made?
    Ð Manifest violation of the rights as of defence: the
        Court of First Instance acted in breach of this
        fundamental principle by adopting the premise               (1) OJ L 331, 27.12.1979, p. 11.
        that, in the context of a procedure pursuant to
        Article 169 of the Treaty, persons who have lodged
        a complaint have no procedural rights.
    Ð Distortion of the subject-matter of the dispute:
        with regard to the plea of inadmissibility raised by
        the Commission, the Court of First Instance failed
        to find in limine litis that there was no legal basis       Action brought on 18 December 1997 by the Commission
        for the Commission's letter closing the file, as            of the European Communities against the French Republic
        SATEBA, in its application, requested it to do. The                                (Case C-429/97)
        Court of First Instance could not, therefore,
        without exceeding its powers, act in the place of                                    (98/C 55/35)
        the Commission in selecting one of the procedures
        made available to the Commission in the context
        of Article 155 of the Treaty, in order to establish a
        ground for declaring the applicant's action                 An action against the French Republic was brought before
        inadmissible.                                               the Court of Justice of the European Communities on
                                                                    18 December 1997 by the Commission of the European
                                                                    Communities, represented by HeÂleÁne Michard and Enrico
(1) OJ C 357, 22.11.1997, p. 27.
                                                                    Traversa, acting as Agents, with an address for service in
                                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                    Wagner Centre, Kirchberg.
 ---pagebreak--- 20.2.98                EN                  Official Journal of the European Communities                                   C 55/19
The Commission claims that the Court should:                          Reference for a preliminary ruling by the Amtsgericht
                                                                      Köln by order of that court of 3 September 1997 in the
                                                                              case of Jutta Johann against Hartmut Johann
                                                                                             (Case C-430/97)
Ð declare that, by refusing to refund VAT to taxable
     persons not established in France, in cases where those                                   (98/C 55/36)
     persons had sub-contracted part of their work to a
     taxable person established in France, the French
     Republic has failed to fulfil its obligations under the          Reference has been made to the Court of Justice of the
     eighth VAT Directive 79/1072/EEC (1), especially                 European Communities by order of the Amtsgericht Köln
     Article 2 thereof,                                               (Local Court, Cologne) of 3 September 1997, received at
                                                                      the Court Registry on 19 December 1997, for a
                                                                      preliminary ruling in the case of Jutta Johann v. Hartmut
                                                                      Johann on the following questions:
Ð order the French Republic to pay the costs.
                                                                      1. Do the Staff Regulations of officials of the European
                                                                          Communities, and in particular Annex VIII thereto
Pleas in law and main arguments adduced in support:                       (pension scheme) constitute a comprehensive and
                                                                          definitive determination of pension claims by a
                                                                          divorced wife, which excludes further claims under
                                                                          national law (in this case apportionment of pension
The Commission rejects the interpretation of Article 9(2)(c)              rights under the German law of obligations)?
of the sixth Directive (2) by the French authorities, who
reduce' the concept of the supply of services in
eliminating waste to the mere execution of works on                   2. Is it compatible with the Staff Regulations of officials
corporeal movable goods which are to be taxed at the                      of the European Communities and Article 6 of the EC
place where they are physically carried out. Such an                      Treaty for the divorce law of a Member State (in this
interpretation of the supply of services in eliminating                   case Germany), by burdening an official with a claim
waste, where such services are cross-frontier by nature,                  under the law of obligations for pension
results in a unilateral and arbitrary allocation of the right             apportionment, to place a heavier burden on that
to tax to the Member State in which the supplier of                       official solely on the ground that he is of German
services holding the main contract is established.                        nationality?
Moreover, the French authorities' approach generates
considerable legal uncertainty not only for the operator in
question in determining for his clients' purposes the VAT
regime of his supply under the contract, but also for the
tax authorities of the Member State in which that taxable
person is established. Such a conception has the effect of
creating potential situations of double taxation which the            Action brought on 19 December 1997 by the Commission
rules of Article 9, and Article 9(1) in particular, allow to                  of the European Communities against Ireland
be avoided by ensuring uniform, homogeneous and                                              (Case C-431/97)
rational taxation of the supplies of services in question
within the Community. Finally, for the purposes of                                             (98/C 55/37)
determining the place of taxation, the French authorities
effectively re-read or interpret the contract made between
the holder of the main contract and his client, without the           An action against Ireland was brought before the Court of
authorities of the Member State in which that supplier of             Justice of the European Communities on 19 December
services is taxable having been in a position to determine            1997 by the Commission of the European Communities,
whether or not that interpretation was capable of                     represented by Mr Berend Jan Drijber, a member of the
adversely affecting their own fiscal competence as defined            Legal Service, acting as Agent, with an address for service
within the scope of Article 9 of the sixth Directive, and             in Luxembourg at the office of Mr Carlos Gómez de la
Article 9(1) in particular.                                           Cruz, a member of its Legal Service, Centre Wagner.
                                                                      The applicant claims that the Court should:
(1) Eighth Council Directive on the harmonisation of the laws of
    the Member States relating to turnover taxes Ð arrangements
    for the refund of value added tax to taxable persons not
                                                                      Ð declare that, in failing to adopt the laws, regulations
    established in the territory of the country (OJ L 331,
    27.12.1979, p. 11).
                                                                          or administrative provisions necessary to comply with
(2) Sixth Council Directive on the harmonisation of the laws of           Council Directive 94/57/EC of 22 November 1994 on
    the Member States relating to turnover taxes Ð common                 common rules and standards for ship inspection and
    system of value added tax: uniform basis of assessment (OJ            survey organisations and for the relevant activities of
    L 145, 13.6.1977, p. 1).                                              maritime administrations (1), Ireland has failed to fulfil
                                                                          its obligations under this Directive and the Treaty,
                                                                      Ð order Ireland to pay the costs.