CELEX: C1996/095/21
Language: en
Date: 1996-03-30 00:00:00
Title: Action brought on 14 February 1996 by the Commission of the European Communities against the French Republic (Case C-43/96)

30 . 3 . 96           EN                  Official Journal of the European Communities                                    No C 95/ 11
dues arrangements previously in force — a genuine internal           13 February 1996 by the Commission of the European
charge which is not discriminatory and is consistent with the        Communities, represented by H. Van Lier, Legal Adviser,
letter and spirit of the Treaty establishing the European            and R. Vidal , of its Legal Service,with an address for service
Community ?                                                          in Luxembourg at the office of Carlos Gomez de la Cruz, of
                                                                     its Legal Service, C 252, Wagner Centre .
(M OJ No L 399 , 30 . 12 . 1989, p . 46 .
                                                                     The applicant claims that the Court should:
                                                                     1 . declare that, by failing to adopt and bring into force
Reference for a preliminary ruling by the
                                                                           or, in the subsidiary, by failing to notify, within
Arrondissementsrechtbank te Amsterdam by decision of                       the prescribed period, the laws, regulations or
that court of 1 February 1996 in the case of Koninklijke                   administrative provisions necessary to comply with
Vereeniging ter Bevordering van de Belangen des                            Council Directive 90/377/EEC ( ! ) of 29 June 1990
Boekhandels v. ( 1 ) Free Record Shop BV and ( 2 ) Free
                                                                           concerning a Community procedure to improve the
                  Record Shop Holding NV
                                                                           transparency of gas and electricity prices charged to
                        ( Case C-39/96 )                                   industrial end-users, the Kingdom of Spain'Has failed to
                          ( 96/C 95/ 19 )                                  fulfil its obligations under Articles 5 and 189 of the
                                                                           Treaty establishing the European Community;
Reference has been made to the Court of Justice of
the European Communities by a decision of the                        2 . order the defendant to pay the costs .
Arrondissementsrechtbank te Amsterdam ( District Court,
Amsterdam ) of 1 February 1996 , which was received at the           Pleas in law and main arguments adduced in support:
Court Registry on 13 February 1996 , for a preliminary
ruling in the case of Koninklijke Vereeniging ter Bevordering        The mandatory nature of the provisions of the third
van de Belangen des Boekhandels ( Royal Association for the          paragraph of Article 189 and the first paragraph of Article 5
Promotion of the Interests of the Book Trade ) v. ( 1 ) Free         of the EC Treaty requires Member States to adopt the
Record Shop BV and ( 2 ) Free Record Shop Holding NV on              measures necessary to transpose directives addressed to
the following questions :                                            them into their domestic law before the expiry of the period
                                                                     prescribed for doing so and forthwith to inform the
( 1 ) If an agreement between undertakings or a decision by          Commission thereof. That period expired on 1 July 1991
      an association of undertakings to regulate competition         without the Kingdom of Spain having brought into force the
      came into existence prior to the entry into force of           necessary provisions concerning transparency of gas prices
      Regulation No 17/62 (*) and was notified to the                charged to end-users .
      Commission in good time pursuant to the provisions of
      that Regulation, does that agreement or decision               (') OJ No L 185 , 17. 7. 1990 , p . 16 .
      continue to benefit from the 'provisional validity'
      which notified cartels enjoy according to the case-law
      of the Court of Justice if the Commission has not
      reacted in any way to that notification ?
( 2 ) If the answer is yes : does that 'provisional validity'        Action brought on 14 February 1996 by the Commission of
      continue for an unlimited period ? If the answer is              the European Communities against the French Republic
      no : on what circumstances will the expiry of the                                         Case C-43/96 )
      'provisional validity' then depend ?                                                       ( 96/C 95/21 )
( 3 ) Does the 'provisional validity' apply solely to the
      agreement or decision, as referred to in Question 1 , in       An action against the French Republic was brought before
      the form in which it was notified, or does it also apply       the Court of Justice on 14 February 1996 by the
      to agreements and decisions which have since come              Commission of the European Communities, represented by
      into existence and continue the same cartel agreements         Helene Michard and Enrico Traversa, of its Legal Service,
      in an amended form, in so far as they do not involve any       acting as Agents, with an address for service in Luxembourg
      extension or reinforcement of the cartel agreements in         at the office of Carlos Gomez de la Cruz, Wagner Centre ,
      the light of the operation and realization of the              Kirchberg.
      common market ?
                                                                     The Commission of the European Communities claims that
(') OJ, English Special Edition 1959— 1962, p. 204 .                 the Court should :
                                                                     ( 1 ) declare that, by maintaining in force legislation
                                                                            excluding the deductibility of VAT in respect of means
Action brought on 13 February 1996 by the Commission                        of transport constituting the actual tools of the trade of
of the European Communities against the Kingdom of                          the taxable person, the French Republic has failed to
                               Spain                                        fulfil its obligations under the Sixth Council Directive
                        ( Case C-40/96 )                                    77/388/EEC of 17 May 1977 on the harmonization of
                          ( 96/C 95/20 )                                    the laws of the Member States relating to turnover
                                                                            taxes — Common system of value added tax: uniform
An action against the Kingdom of Spain was brought before                   basis of assessment ( ! ), in particular the provisions of
the Court of Justice of the European Communities on                         Article 17 ( 2 ) thereof;
 ---pagebreak--- No C 95/ 12              EN                    Official Journal of the European Communities                                     30 . 3 . 96
( 2) order the French Republic to pay the costs.                              establish that undertaking as meeting needs in the
                                                                              general interest not having an industrial or commercial
Pleas in law and main arguments adduced in support:                           character within the meaning of Article 1 ( b ) of Directive
                                                                              93/37/EEC ( ! ) and make such an undertaking as a whole
                                                                              fall within the scope of that Directive, even if those
Infringement of Article 17 (2 ) of Directive 77/388/EEC:
                                                                              activities form only part of the undertaking's activity
contrary to the contention of the French authorities, the
                                                                              and the undertaking in addition participates in the
exception to the principle of entitlement to deduct the input                 market as a commercial undertaking ?
VAT paid by a taxable person, as referred to in Article 17
( 6 ), cannot be interpreted autonomously in such a way as to
allow Member States to maintain exclusions which are                      2 . In the event that such an undertaking falls within the
general and absolute in scope and which apply to all                          scope of Directive 93/37/EEC only with respect to the
expenditure, including that of a business nature . Article 17                 special and exclusive rights conferred on it, is such an
( 6 ) constitutes a ' standstill ' provision adopted in the absence           undertaking obliged to take organizational measures to
of agreement on a Community list of exclusions from the                       prevent financial means obtained from earnings from
deduction entitlement, covering expenditure which is                          those special and exclusive rights being switched to
intended by its nature to satisfy private needs and which                     other sectors of activity ?
cannot therefore give rise to any deduction entitlement; the
second sentence of the first paragraph thus comprises the                 3 . If a contracting authority starts a project and that
minimum agreement which could be reached at the time                          project is therefore to be classified as a public works
when the Directive was adopted .                                              contract within the meaning of Directive 93/37/EEC,
                                                                              may the intervention of a third party who prima facie
The exclusion of the deduction entitlement in respect of                      does not fall within the personal scope of the Directive
vehicles and mixed-use conveyances cannot be justified by                     have the effect of altering the classification of a project
the difficulty involved in ascertaining and checking on the                   as a public works contract, or should such a proceeding
actual use to which a vehicle is put; the consequences of the                 be regarded as an evasion of the personal scope of the
use by a taxable person of certain assets of his undertaking                  Directive and incompatible with the aim and purpose of
for business and private purposes arise from the framework                    the Directive ?
of the deduction entitlement laid down in Article 17 ( 5 ) of
the Directive .
                                                                          4 . If a contracting authority establishes undertakings for
                                                                              carrying on commercial activities and holds majority
(') OJ No L 145 , 13 . 6 . 1977 , p . 1 .
                                                                              holdings in them which enable it to exercise economic
                                                                              control over those undertakings, does the classification
                                                                              as a contracting authority then also apply to those
                                                                              associated undertakings ?
                                                                          5 . If a contracting authority transfers funds which it has
Reference for a preliminary ruling from the                                   earned from special and exclusive rights conferred on it
Bundesvergabeamt by order of that body of 2 February                          to purely commercial undertakings in which it owns a
1996 in the review procedure of ( 1 ) Mannesmann                              majority holding, does that have the effect that,
Anlagenbau Austria AG, (2 ) J.L. Bacon Gesellschaft mbH,                      regardless of the legal position of the associated
( 3 ) Haustechnische Gesellschaft für Sanitär-, Wärme- und                    undertaking, that undertaking as a whole must let itself
Luft-Technische Anlagen GmbH and ( 4 ) Sulzer Infra                           be treated and behave as a contracting authority within
Anlagen- und Gebäudetechnik Gesellschaft mbH v. Strohal                       the meaning of Directive 93/37/EEC ?
                       Rotationsdruck GmbH
                           ( Case C-44/96
                                                                          6 . If a contracting authority which both meets needs in the
                             ( 96/C 95/22 )                                   general interest not having an industrial or commercial
                                                                              character and also carries on commercial activities
Reference has been made to the Court of Justice of the                        establishes operating installations which are capable of
European Communities by an order the Second Senate                            serving both purposes, is the award of the contract for
of the Bundesvergabeamt ( Federal Award Office ) of                           constructing such operating installations to be classified
2 February 19 96 , which was received at the Court Registry                   as a public works contract within the meaning of
on 14 February 1996 , for a preliminary ruling in the review                  Directive 93/37/EEC, or does Community law contain
procedure of ( 1 ) Mannesmann Anlagenbau Austria AG, ( 2 )                    criteria according to which such an operating
J.L. Bacon Gesellschaft mbH, ( 3 ) Haustechnische                             installation can be classified either as serving public
Gesellschaft fur Sanitar-, Warme- und Luft-Technische                         needs or as serving commercial activities, and if so,
                                                                              which criteria ?
Anlagen GmbH and ( 4 ) Sulzer Infra Anlagen- und Ge­
baudetechnik Gesellschaft mbH v. Strohal Rotationsdruck
GmbH on the following questions :                                         7. Does Article 7 ( 1 ) of Council Regulation ( EEC )
                                                                              No 208 1 /93 ( 2 ) of 20 July 1993 amending Regulation
 1 . Can a provision of a national law, such as Paragraph 3                   ( EEC ) No 2052/88 ( 3 ) on the tasks of the Structural
       of the Staatsdruckereigesetz in the present case, which                Funds and their effectiveness and on coordination of
       confers special and exclusive rights on an undertaking,                their activities between themselves and with the