CELEX: C1997/357/39
Language: en
Date: 1997-11-22 00:00:00
Title: Reference for a preliminary ruling by the Länsrätt i Dalarnas Län by order of that court of 3 September 1997 in the case of Transwede Airways AB against Riksskatteverket (Case C-346/97)

C 357/22           I EN I                 Official Journal of the European Communities                                          22 . 11 . 97
The applicant claims that the Court should:                           common agricultural policy. The determination of the
                                                                      maximum residue values in food for infants and small
                                                                      children primarily serves the protection of human health
— annul Council Directive 97/41/EC of 25 June 1997                    and must therefore be effected on the basis of Article 100a
    amending Directives 76/895/EEC, 86/362/EEC, 86/                   of the EC Treaty.
     363/EEC and 90/642/EEC relating to the fixing of
    maximum levels for pesticide residues in and on,
    respectively, fruit and vegetables, cereals, foodstuffs on        (■) OJ L 184 , 12 . 7. 1997, p. 33 .
    animal origin, and certain products of plant origin,
    including fruit and vegetables ('), in so far as it inserts
    a provision in the second sentence of, respectively
    — Article 1 ( 3 ) of Directive 76/895/EEC,
    — Article 1 (2 ) ( d ) of Directive 86/362/EEC,                   Reference for a preliminary ruling by the Lansratt
                                                                      i Dalarnas Lan by order of that court of 3 September
    — Article 1 ( 2 ) ( b ) of Directive 86/363/EEC, and              1997 in the case of Transwede Airways AB against
                                                                                                  Riksskatteverket
    — Article 1 (2 ) (e ) of Directive 90/642/EEC,                                                ( Case C-346/97 )
                                                                                                    ( 97/C 357/39 )
    to the effect that the disputes settlement procedure laid
    down in Article 5a of the respective Directives is also
    to apply to food for infants and small children,
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Lansratt i
— order the Council to pay the costs.                                 Dalarnas Lan ( County Administrative Court, Dalarna ) of
                                                                      3 September 1997, received at the Court Registry on
                                                                      6 October 1997, for a preliminary ruling in the case of
Pleas in law and main arguments adduced in support:                   Transwede Airways AB against Riksskatteverket on the
                                                                      following questions:
The German Government argues that, in so far as the
contested Directive brings food for infants and small
children within the disputes settlement procedure, the                1 . Are the taxation measures described herein, adopted
Council was not entitled to base it on Article 43 of the EC                under Law         1988:1567       on     environmental  tax on
Treaty, but could do so, at best, on the basis of                          domestic air navigation, contrary to Council Directive
Article 100a .                                                             92/81 /EEC ('the Mineral Oils Directive') ( 5 ),
                                                                           Article 8 ( 1 ) ( b ) of which provides that Member States
                                                                           are to exempt from harmonized excise duty mineral
Products falling under the Directives concerning food for                  oils supplied for use as aviation fuel except for private
infants and small children are not agricultural products for               pleasure flying ?
the purposes of the EC Treaty. The decision whether the
products in question are to be classified under Annex II to
the EC Treaty or under a tariff heading not contained in
that Annex can, the Government submits, be made only in               2 . If question 1 is answered in the affirmative, can
individual cases ono the basis of the formula for the                      Article 8 ( 1 ) ( b ) of the Mineral Oils Directive be
particular product. The products covered by Directives 91/                 regarded as having direct effect, so that the provision
321 /EEC and 96/5/EC are to a significant extent not                       can be relied on by an individual against a State
agricultural products, but products which are to be                        authority before a national court ?
classified within Chapters 19 or 21 of the Brussels
nomenclature .
                                                                      3 . If the Mineral Oils Directive is to be applied in the
                                                                           present case, can the taxation measures in question be
Even if a significant proportion of the food for infants and               split up into Community compatible and Community
small children covered by the contested Directives did fall                incompatible parts, owing to the fact that Swedish
under Annex II and thereby became part of the common                       environmental tax is calculated partly on the basis of
agricultural market, it does not necessarily follow that the               fuel consumption and partly on the basis of emissions
rules contribute to the attainment of one or more of the
                                                                           of hydrocarbons and nitric oxides ?
objectives of the common agricultural policy cited in
Article 39 of the Treaty and do not primarily serve other
purposes. In the opinion of the German Government, rules              (') Council Directive 92/81 /EEC of 19 October 1992 on the
whose primary purpose is the protection of human health                   harmonization of the structures of excise duties on mineral
must be legally based on Article 100a of the EC Treaty,                   oils ( OJ L 316 , 31 . 10 . 1992, p. 12 ).
even if they also concern products which are listed in
Annex II to the Treaty, and may possibly also contribute
to the attainment of one or more of the objectives of the