CELEX: C1997/331/10
Language: en
Date: 1997-11-01 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 17 September 1997 in Case C-28/96 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): Fazenda Pública v. Fricarnes SA (National charges on the marketing of meat - Charge having equivalent effects - Internal taxation - Turnover tax)

C 331 /6                   EN                  Official Journal of the European Communities                                   1 . 11 . 97
3 . A tax levied only on certain products, which is not                            domestic and imported products according to the
      proportional to the price of those products, is not                          same criteria are covered in principle by Article 95
      charged at each stage of the production and                                  et seq. of the EC Treaty.
      distribution process and is not imposed on the added
       value of the products, is not in the nature of a
       turnover tax within the meaning of Article 33 of the
      Sixth Council Directive (77/388/EEC) of 17 May 1977                          A charge levied without distinction on domestic
       on the harmonization of the laws of the Member                              and imported products constitutes a charge having
      States relating to turnover taxes — Common system of                         an effect equivalent to a customs duty, prohibited
       value added tax: uniform basis of assessment.                               by Articles 9 and 12 of the Treaty, if the revenue
                                                                                   from it is intended to finance activities benefiting
                                                                                   only the taxed domestic products and if the
(') OJ C 351 , 30 . 12 . 1995 .                                                    resultant advantages fully offset the burden which
( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .                                            the latter products bear; if those advantages only
                                                                                   partly offset the burden borne by the domestic
                                                                                   products, the charge constitutes discriminatory
                                                                                   internal taxation prohibited by Articles 95 of the
                                                                                   Treaty and must be reduced proportionally.
                 JUDGMENT OF THE COURT                                       ( b ) If the activities financed by the charge benefit
                             (Fifth Chamber)                                       domestic products and taxed imported products
                                                                                   but the former obtain a proportionally greater
                          of 17 September 1997                                     advantage from them, the charge constitutes, to
                                                                                   that extent, a charge having an effect equivalent to
in Case C-28/96 (reference for a preliminary ruling from                           a customs duty or discriminatory internal taxation,
the Supremo Tribunal Administrativo ): Fazenda Publica v.                          depending on whether the advantage accruing to
                             Fricarnes SA (')                                      the taxed domestic products fully or only partly
(National charges on the marketing of meat — Charge                                offsets the burden which they bear.
having equivalent effects — Internal taxation — Turnover
                                      tax)
                              ( 97/C 331/10                               2. It is for the national court to undertake the
                                                                             verifications necessary for determining how the
                                                                             contributions in question are to be characterized in
                (Language of the case: Portuguese)                           law. In so doing it will consider:
    (Provisional translation; the definitive translation will be
                                                                             ( a ) whether the revenue from the charge at issue,
                                                                                   which is specifically intended to be used to combat
            published in the European Court Reports)
                                                                                   diseases of livestock reared on national territory,
                                                                                   benefits exclusively animals of national origin or,
                                                                                   at least, benefits them proportionally more than
In      Case  C-28/96 — reference           to  the   Court under                  imported animals;
Article 177 of the EC Treaty by the Supremo Tribunal
Administrativo ( Portugal ) for a preliminary ruling in the
proceedings pending before that court between Fazenda
Publica and Fricarnes SA on the interpretation of                             ( b) whether the revenue from all the charges at issue is
Articles 9, 12 and 95 of the EC Treaty and Article 33 of                           used for stabilization only of trade with the other
the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977                          Member States in the products which bear the
on the harmonization of the laws of the Member States                              charges;
relating to turnover taxes — Common system of value
added tax: uniform basis of assessment ( 2 ) — the Court
 ( Fifth Chamber) composed of: J. C. Moitinho de Almeida,                     (c ) whether the institutional integration of the
President of the Chamber, L. Sevon, C. Gulmann, J. P.
                                                                                   organizations representing the economic agents
Puissochet and M. Wathelet ( Rapporteur), Judges;                                  concerned and the implementation of the national
Advocate General: G. Tesauro, H. von Holstein, Deputy                              and Community aid schemes and financial and
Registrar, for the Registrar, gave a judgment on                                   fiscal incentives in favour of the agri-foodstuffs
 17 December 1997, the operative part of which is as                               industry and the distribution of agri-foodstuffs, to
 follows :
                                                                                   which part of the revenue from the charges in
                                                                                   question is appropriated, benefit only domestic
                                                                                   production or whether they benefit such
 1 . ( a ) Pecuniary charges under a general system of                             production proportionally more than imported
           internal charges applying systematically to                             products.
 ---pagebreak--- 1 . 11 . 97                EN                   Official Journal of the European Communities                                        C 331 /7
3 . A tax levied only on certain products, which is not                    that, where that directive has not been transposed by the
      proportional to the price of those products, is not                  end of the period laid down for that purpose, the appeal
       charged at each stage of the production and                         bodies of the Member States having competence in
       distribution process and is not imposed on the added                relation to procedures for the award of public works
       value of the products, is not in the nature of a                    contracts and public supply contracts may also hear
       turnover tax within the meaning of Article 33 of the                appeals relating to procedures for the award of public
      Sixth Council Directive (77/388IEEC) of 17 May 1977                  service contracts. However, in order to observe the
       on the harmonization of the laws of the Member                      requirement that domestic law must be interpreted in
       States relating to turnover taxes — Common system of                conformity with Directive 921SO and the requirement that
       value added tax: uniform basis of assessment.                       the rights of individuals must be protected effectively, the
                                                                           national court must determine whether the relevant
0 ) OJ C 77, 16 . 3 . 1996 .
                                                                           provisions of its domestic law allow recognition of a right
( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .                                    for individuals to bring an appeal in relation to awards of
                                                                           public service contracts. In circumstances such as those
                                                                           arising in the present case, the national court must
                                                                           determine in particular whether such a right of appeal
                                                                           may be exercised before the same bodies as those
                                                                           established to hear appeals concerning the award of public
                                                                           supply contracts and public works contracts.
                 JUDGMENT OF THE COURT
                                                                           H OJ C 108 , 13 . 4. 1996 .
                          of 17 September 1997                             ( 2 ) OJ L 209, 24 . 7. 1992, p. 1 .
in Case C-54/96 (reference for a preliminary ruling from
the Vergabeüberwachungsausschuß des Bundes ): Dorsch
Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft
                              Berlin mbH ( J )
(Meaning of 'national court or tribunal' for the purposes
of Article 1 77 of the Treaty — Procedures for the award                                   JUDGMENT OF THE COURT
of public service contracts — Directive 92/50/EEC —
                          National review body)                                                       ( First Chamber)
                              ( 97/C 331/11 )                                                      of 17 September 1997
                                                                           in Case C-83/96, (reference for a preliminary ruling from
                                                                           the Corte Suprema di Cassazione ): Provincia Autonoma di
                  (Language of the case: German)                           Trento and Ufficio del Medico Provindiale di Trento v.
                                                                                             Dega di Depretto Gino Snc (')
   (Provisional translation; the definitive translation will be            (Consumer protection — Labelling of foodstuffs —
                                                                                             Council Directive 79/112/EEC)
            published in the European Court Reports)
                                                                                                        ( 97/C 331/12 )
In Case C-54/96 : reference to the Court under Article 177
of the EC Treaty from the Vergabeiiberwachungsausschufi                                      (Language of the case: Italian)
des      Bundes       ( Federal      Public  Procurement     Awards
Supervisory Board ) ( Germany), for a preliminary ruling
in the proceedings pending before that body between                            (Provisional translation; the definitive translation will be
Dorsch         Consult        Ingenieurgesellschaft     mbH      and                   published in the European Court Reports)
Bundesbaugesellschaft Berlin mbH — on the interpretation
of Article 41 of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the                    In Case C-83/96 : reference to the Court under Article 177
award of public service contracts (2 ) — the Court,                        of the EC Treaty by the Corte Suprema di Cassazione
composed of: G. C. Rodriguez Iglesias, President, G. F.                    ( Italy ) for a preliminary ruling in the proceedings pending
Mancini, J. C. Moitinho de Almeida, J. L. Murray and L.                    before that court between, on the one hand, Provincia
Sevon (Presidents of Chambers), C. N. Kakouris, P. J. G.                   Autonoma di Trento and Ufficio del Medico Provinciale di
Kapteyn, C. Gulmann, D. A. O. Edward, J. -P. Puissochet,                   Trento and, on the other, Dega di Depretto Gino Snc, on
G. Hirsch, P. Jann ( Rapporteur), H. Ragnemalm, M.                         the interpretation of Article 3 ( 1 ) ( 6 ) of Council Directive
Wathelet and R. Schintgen, Judges; G. Tesauro, Advocate                    79/112/EEC of 18 December 1978 on the approximation
General; H. A. Riihl, Principal Administrator, for the                     of the laws of the Member States relating to the labelling,
Registrar, has given a judgment on 17 September 1997, in                   presentation and advertising of foodstuffs for sale to the
which it has ruled :                                                       ultimate consumer ( 2 ), — the Court ( First Chamber)
                                                                           composed of: L. Sevon, President of the Chamber, P. Jann
                                                                           and M. Wathelet ( Rapporteur ), Judges; P. Leger, Advocate
It does not follow from Article 41 of Council Directive                    General; L. Hewlett, Administrator, for the Registrar, has
92/50/EEC of 18 June 1992 relating to the coordination                     given a judgment on 17 September 1997, in which it has
of procedures for the award of public service contracts                    ruled :