CELEX: C2002/044/16
Language: en
Date: 2002-02-16 00:00:00
Title: Case C-496/01: Action brought on 21 December 2001 by the Commission of the European Communities against the French Republic

16.2.2002               EN                   Official Journal of the European Communities                                         C 44/9
      legislation in force, current health policy and veterinary              —     requiring bio-medical analysis laboratories estab-
      supervision’ also applied to caviar, their findings in fact                   lished in other Member States to have their place of
      related exclusively to the production of horse meat and                       business on French territory as a condition for
      pike fillets. The Commission made a proposal to the                           obtaining the requisite operating authorisation; and
      Veterinary Committee without having itself carried out
      any examination or appraisal and without submitting the
      inspectors’ report.                                                     —     precluding any reimbursement of the cost of bio-
                                                                                    medical analyses carried out by bio-medical analysis
                                                                                    laboratories established in another Member State,
—     The Court of First Instance further disregarded the fact
      that, in addition, the Commission clearly violated the
      principle of the protection of legitimate expectations, to              the French Republic has failed to fulfil its obligations
      the detriment of the appellant: according to Commission                 under Articles 43 and 49 of the EC Treaty; and
      Decision 1999/136 of 28 January 1999, published in the
      Official Journal of 18 February 1999, the importation of          2.    order the French Republic to pay the costs.
      caviar from Kazakhstan continued to be permitted (List II).
      Thereafter, at the beginning of March 1999, the appellant
      concluded contracts for the supply of caviar from Kazakh-
      stan for the 1999 season. However, in January 1999, at
      all events before 18 February 1999, the Commission was            Pleas in law and main arguments
      already aware of the results of the inspection, as set out
      in the report, which prompted it to submit to the
      Veterinary Committee, for consideration at its meeting            —     Restriction of Article 43 EC by virtue of the fact that the
      on 23 February 1999, a draft providing for deletion from                requisite administrative authorisation for operating a bio-
      List II. In view of the small number of importers affected,             medical analysis laboratory (Article L 757 of the Public
      it would have been easy for the Commission to inform                    Health Code) can only be delivered by the Préfet for the
      those undertakings of the results of the inspection visit,              département in which the laboratory operates (Article 15
      which were available to it in January, and of the                       of Decree No 76-1004). That provision precludes the
      consequences which those results might have for the                     setting up of an establishment having the status of an
      importation of caviar.                                                  office or agency. The Commission does not dispute that
                                                                              a Member State may provide for rules governing the
                                                                              authorisation for operating laboratories. Such rules must
                                                                              however take account of the requirements and safeguards
(1) Decision 1999/244/EC amending Decision 97/296/EC drawing
    up the list of third countries from which the import of fishery           already complied with in another Member State of
    products is authorised for human consumption (OJ 1999 L 91,               establishment without disregarding that a higher level of
    p. 37).                                                                   protection may exist in the first Member State. Otherwise,
                                                                              failure to take into account safeguards already complied
                                                                              with in another Member State would lead to a duplicate
                                                                              procedure for applying for authorisation over and above
                                                                              the authorisation which the foreign laboratory has already
                                                                              obtained in its Member State of establishment. Such a
                                                                              situation runs counter to the principle of proportionality
                                                                              which requires that the objectives pursued must be
                                                                              achieved by the least restrictive means.
Action brought on 21 December 2001 by the Commission
of the European Communities against the French Republic                 —     Restriction of Article 43 EC by virtue of the fact that the
                                                                              French legislation (Article R 332-3 of the Social Security
                                                                              Code) restricts financial assistance from sickness
                          (Case C-496/01)                                     insurance schemes only to exceptional cases, that is to
                                                                              say where the insured person is able to show that he
                           (2002/C 44/16)                                     cannot obtain the appropriate treatment on French
                                                                              territory, which is moreover not the case so far as
                                                                              concerns bio-medical analysis laboratories. That consti-
                                                                              tutes a barrier both to the freedom to provide services
                                                                              (where a laboratory does not have an establishment in
An action against the French Republic was brought before the
                                                                              France) and to the right to set up secondary establish-
Court of Justice of the European Communities on 21 December
                                                                              ments (where a laboratory has a secondary establishment
2001 by the Commission of the European Communities,
                                                                              where analyses are not however carried out).
represented by Maria Patakia, acting as Agent.
                                                                        The Commission takes the view that such restrictions are not
The applicant claims that the Court should:
                                                                        justified on public-health grounds in particular. The safeguards
                                                                        afforded by the Council directives in the field (93/16/EEC,
1.    Declare that by:                                                  85/432/EEC, 85/433/EEC, 78/1026/EEC and 78/1027/EEC)
 ---pagebreak--- C 44/10                EN                   Official Journal of the European Communities                                      16.2.2002
ensure to a great extent the quality of medical services, so that           Member States relating to turnover taxes — Common
specific measures restricting the basic freedoms enshrined in               system of value added tax: uniform basis of assessment (1)
the Treaty should be exceptional and fully justified by special             to be interpreted as meaning that the transfer of a totality
circumstances. As for monitoring in particular, there is nothing            of assets to a taxable person constitutes a sufficient
to prevent laboratories established in other Member States                  condition for the transaction not to be made subject to
agreeing, voluntarily, to comply with French standards when                 value added tax, whatever the taxable person’s activity
applying for authorisation nor is there anything to prevent                 may be or whatever use he makes of the property
French inspectors from travelling abroad so long as their                   transferred?
inspection is freely consented to by the laboratories concerned.
                                                                       2.   If the answer to the first question is in the negative, is
                                                                            Article 5(8) of the Sixth Directive to be interpreted as
                                                                            meaning that the transfer of a totality of assets to a
                                                                            taxable person is to be understood as meaning a transfer
                                                                            of all or part of an undertaking to a taxable person who
Reference for a preliminary ruling by the Tribunal d’Ar-                    continues the whole activity of the transferor undertaking
rondissement de Luxembourg by order of 19 December                          or continues the activity of the branch corresponding to
2001 in the case of Zita Modes SARL v Administration                        the part of the totality of assets transferred, or merely as
             de l’enregistrement et des domaines                            meaning a transfer of a totality of assets or part thereof
                                                                            to a taxable person who continues the transferor’s line of
                         (Case C-497/01)                                    activity in whole or in part, without there being any
                                                                            transfer of an undertaking or branch of an undertaking?
                          (2002/C 44/17)
                                                                       3.   If the answer to any part of the second question is in the
                                                                            affirmative, does Article 5(8) of the Sixth Directive require
                                                                            or allow a State to require that the recipient’s activity be
Reference has been made to the Court of Justice of the                      pursued in accordance with the licence issued by the
European Communities by order of 19 December 2001 by the                    competent authority for the activity or branch of activity
Tribunal d’Arrondissement de Luxembourg which was received                  stipulated, assuming that the activity pursued falls within
at the Court Registry on 24 December 2001, for a preliminary                lawful economic channels in the sense contemplated in
ruling in the case of Zita Modes SARL v Administration de                   the case-law of the Court of Justice?
l’enregistrement et des domaines on the following questions:
1.    Is Article 5(8) of the Sixth Council Directive 77/388/EEC
      of 17 May 1977 on the harmonisation of the laws of the           (1) OJ L 145, 13.6.1977, p. 1.