CELEX: C2000/079/26
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-512/99: Action brought on 28 December 1999 by the Republic of Germany against the Commission of the European Communities

C 79/14                EN                   Official Journal of the European Communities                                    18.3.2000
Are the provisions of Council Directive 69/335/EEC of 17 July             for the decision. Since the German Government presented
1969 concerning indirect taxes on the raising of capital (OJ,             its case on the basis of the requirements of old
English Special Edition 1969 (11), p. 412), and in particular             Article 100a(4) EC, which it was entitled to do, the
Article 6, to be interpreted as precluding a Member State from            Commission to must use old Article 100a(4) as the basis
levying capital duty on the limited partners’ contributions to a          for its decision. The fact that old Article 100a(4) EC does
limited trading partnership (KEG) when a private limited                  not lay down a period for the Commission to reply
company (GmbH) joins it as general partner, if the partnership            certainly cannot have the consequence that the Com-
capital on which duty is to be imposed had already been                   mission alone has discretion to determine the period for
subjected, before the entry into force of Directive 69/335/EEC,           replying. Here too the principle of the duty of loyal
to a duty such as that referred to in Paragraph 33, schedule              cooperation under Article 10 EC (new numbering — old
item 16(1) (b) of the Gebührengesetz (Law on Fees) 1957,                  Article 5 EC) must apply.
BGBl. 267/1957?
                                                                          Whilst on its wording old Article 100a(4) only applies to
                                                                          harmonising measures of the Council, according to its
                                                                          scheme and purpose it is also applicable by analogy to
                                                                          directives of the Commission, or at least to those which are
                                                                          issued as a consequence of votes in adaptation committees
                                                                          where the applicant Member State has been out-voted by
Action brought on 28 December 1999 by the Republic                        a qualified majority.
of Germany against the Commission of the European
                           Communities
                                                                          In the alternative: the German application should have
                         (Case C-512/99)                                  been examined under Article 95(4). The term ‘maintain’
                                                                          used therein is to be understood as also including measures
                                                                          adopted as a result of the transposition into national law
                          (2000/C 79/26)                                  of harmonising measures.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European           — Infringement of the right to a hearing and the duty to
Communities on 28 December 1999 by the Federal Republic                   cooperate in Article 10 EC. The Commission failed to
of Germany, represented by Wolf-Dieter Plessing, Minis-                   afford the German Government an opportunity to adjust
terialrat, and Dr Bettina Muttelsee-Schön, Head of Unit, Federal          its observations to a new legal basis, including sup-
Ministry of Finance, Graurheindorfer Str. 108, D-53117 Bonn.              plementing the presentation of its case as necessary, by
                                                                          granting it extra time.
The applicant claims that the Court should:
1. Definitively annul the Commission’s             decision    of      — In the alternative, misapplication of the requirements of
     26.10.1999 — K(1999)3490 final (1);                                  Article 95(5) EC:
2. Order the defendant to pay the costs.
                                                                          — the Commission is wrong to deny that there have been
                                                                              new scientific discoveries as to the carcinogenic effect
Pleas and law and main arguments                                              of certain man-made mineral fibres.
— Inappropriate legal basis: Instead of basing its decision on
     Article 95(EC) the Commission should have relied on                  — the Commission is wrong to deny that there is a
     old Article 100a(4) EC or Article 95(4) EC. The German                   problem specific to Germany. Because of its climate
     Government’s application could only be based on the                      and an environmental policy which encourages
     requirements applicable to the application. The fact that                increased use of insulation, Germany has the highest
     the German Government followed the provisions of old                     use of insulatory materials made from man-made
     Article 100a(4) EC which was applicable at the material                  mineral fibre in the EU. The number of employees
     time cannot work its detriment ex post facto.                            and home workers at risk is therefore likely to be
                                                                              significantly higher than in other Member States.
     The application of old Article 100a(4) EC is also compat-
     ible with the scheme of the Treaty. The rule is closely
     interconnected with old Article 100a(1) EC. Old                   — Error of appraisal in relation to scientific knowledge of
     Article 100a(4) EC governs the right under the Treaty a              man-made mineral fibres. Large parts of the technical
     Member State out-voted by qualified majority on the                  experts’ report do not dispute in detail the state of
     adoption of a harmonising measure to pass derogating                 scientific knowledge as described by Germany. The CSTEE
     national legislation. The link between the two provisions            Committee, on whose opinion the Commission relies,
     established by the Community legislature cannot be dis-              obviously did not have access to the scientific views on
     solved ex post facto by having recourse to a different basis         which the German Government based its application.
 ---pagebreak--- 18.3.2000               EN                       Official Journal of the European Communities                                         C 79/15
     Even if the latest scientific position is not yet clear, it is         of the Salzburger Grundverkehrsgesetz (Salzburg Land Transfer
     legally wrong for the Commission to lay down more                      Law) of 1997 in the version published in LGBl. No. 11/1999,
     stringent requirements in respect of measures adopted by               whereby any person who wishes to acquire a building plot in
     Member States than it does in respect of itself. In any                the federal Land of Salzburg must comply with a notification
     event, in a situation of general uncertainty where, even in            or authorisation procedure in respect of the acquisition of that
     the Commission’s view, it is impossible to make any                    plot, with the consequence that one of the fundamental
     definitive statements on the danger, and the harmonising               freedoms of the acquirer of title as guaranteed by the laws of
     directive itself provides for timely re-evaluation, the Mem-           the European Union has been infringed in this case?
     ber States must have discretion as to the continuing need
     for national risk-avoidance measures. That is exactly the
     purpose of the national sovereignty exception in old
     Article 100a(4) and the same must apply to Article 95(5)
     EC.
                                                                            Reference for a preliminary ruling from the Berufungs-
(1) The Commission’s decision of 26.10.1999 on an individual                senat V of the Finanzlandesdirektion for Vienna, Niederö-
    Member State’s conditions for mineral wool communicated by              sterreich and Burgenland, by order of that court of
    Germany in derogation from Directive 97/69/EC adapting to               2 December 1999 in the case of Walter Schmid v Finan-
    technical progress for the 23rd time Council Directive 67/548/EEC           zamt for the 9th, 18th and 19th Districts in Vienna
    on the approximation of the laws, regulations and administrative
    provisions relating to the classification, packaging and labelling
                                                                                                     (Case C-516/99)
    of dangerous substances
                                                                                                      (2000/C 79/28)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Berufungssenat V
                                                                            (Appeal Chamber V) of the Finanzlandesdirektion (Regional
                                                                            Finance Appeal Authority) for Vienna, Niederösterreich and
                                                                            Burgenland, of 2 December 1999, which was received at the
                                                                            Court Registry on 30 December 1999, for a preliminary ruling
References for a preliminary ruling by the Unabhängiger                     in the case of Walter Schmid v Finanzamt (Finance Authority)
Verwaltungssenat Salzburg by orders of that court of                        for the 9th, 18th and 19th Districts in Vienna, on the following
22 December 1999 in the appeals concerning (1) Hans                         questions:
Reisch and twenty-eight others, (2) Bürgermeister der
Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftrag-                      1. Do Article 73b(1) in conjunction with Article 73d(1)(a)
ter des Landes Salzburg and (4) Grundverkehrslandes-                             and (b) and (3) of the EC Treaty (now Article 56(1) in
               kommission des Landes Salzburg                                    conjunction with Article 58(1)(a) and (b) and (3) EC)
                                                                                 preclude a provision such as Paragraph 97 of the Einkom-
                                                                                 mensteuergesetz (‘EStG’; Law on Income Tax) of 1988
           (Cases C-515/99 and C-519 to C-540/99)                                (BGBI 1988/400; as amended, BGBI 1996/797), which
                                                                                 provides (pursuant to Paragraph 1(1)(1)(c) of the Endbe-
                            (2000/C 79/27)                                       steuerungsgesetz (Law on Final Taxation), BGBI 1993/11)
                                                                                 that final taxation of dividends, interest and other earnings
                                                                                 from foreign shares is excluded, and thus the rate of
Reference has been made to the Court of Justice of the                           taxation in respect of domestic shares is 25 %, whereas the
European Communities by orders of the Unabhängiger Verwal-                       rate of taxation in respect of foreign shares may be up to
tungssenat Salzburg of 22 December 1999, received at the                         50 %?
Court Registry on 30 December 1999, for preliminary rulings
in the appeals concerning (1) Hans Reisch and twenty-eight                  2. Do Article 73b(1) in conjunction with Article 73d(1)(a)
others, (2) Bürgermeister der Landeshauptstadt Salzburg, (3)                     and (b) and (3) of the EC Treaty (now Article 56(1) in
Grundverkehrsbeauftragter des Landes Salzburg and (4) Grund-                     conjunction with Article 58(1)(a) and (b) and (3) EC)
verkehrslandeskommission des Landes Salzburg on the follow-                      preclude a provision such as Paragraph 37(1) and (4) of
ing question:                                                                    the EStG of 1988 (BGBI 1988/400), which provides that
                                                                                 dividends of any kind from shareholdings in domestic
                                                                                 limited companies in the form of shares are subject to a
Are the provisions of Article 56 et seq. of the EC Treaty to be                  tax rate reduced to half of the average tax rate applicable
interpreted as precluding                                                        to the aggregate income, but that dividends of any kind
                                                                                 from shareholdings in limited companies whose seat and
— (Cases C-519/99 to C-526/99:) the application of Para-                         place of management are in another EU Member State or
     graphs 12 to 14                                                             a non-Member State are not subject to any reduction of
                                                                                 that kind?
— (Cases C-515/99 and C-527/99 to C-540/99:) the appli-
     cation of Paragraphs 12, 36 and 43