CELEX: C1996/031/22
Language: en
Date: 1996-02-03 00:00:00
Title: Action brought on 30 November 1995 by the Commission of the European Communities against the Hellenic Republic (Case C-375/95)

3 . 2 . 96                  EN |                 Official Journal of the European Communities                                  No C 31 / 11
Ministero delle Finanze ( Ministry of Finance ) and the                     Reference for a preliminary ruling by the Industrial
Ministero del Commercio con l'Estero ( Ministry of Foreign                  Tribunal, Southampton ( United Kingdom ), by order of that
Trade ) on the following questions :                                        court of 23 November 1995 , in the case of James Paul
                                                                                        Barker against Service Children's Schools
                                                                                                     ( Case C-3 74/95
1 . Should that part of Council Regulation ( EEC ) No                                                   ( 96/C 31 /21 )
       404/93 (') which limits the right to import Somali
       bananas — the so-called right of access, as recognized by
       the Lome Convention of 15 December 1989 , Protocol 5                 Reference has been made to the Court of Justice of the
       thereto and the Joint Declaration contained in                       European Communities by an order of the Industrial
       Annex LXXIV to the Convention — be considered                        Tribunal,        Southampton          ( United Kingdom ),    of
       valid , in particular inasmuch as it:                                23 November 1995 , which was received at the Court
                                                                            Registry on 30 November 1995 , for a preliminary ruling in
                                                                            the case of James Paul Barker against Service Children 's
       ( a ) establishes different import arrangements for                  Schools, on the following questions :
              traditional bananas, non-traditional bananas and
              bananas in excess of the quota set for that purpose           1 . Do the provisions of Council Directive 76/207/EEC of
              and thus imposes quantitative restrictions;                        9 February 1976 on the implementation of the principle
                                                                                 of equal treatment for men and women as regards access
       ( b ) imposes the requirement to obtain an import                         to employment, vocational training and promotion, and
              document and to lodge a security for that purpose                  working conditions ( l ) permit a Member State to
              — a document which is not purely for statistical                   exclude from the measures required by Article 3 of the
              purposes and is subject to conditions that are                     said Directive, equal treatment ( as regards access to
              onerous and difficult to satisfy;                                  employment ) where the employment in question is to be
                                                                                 at an establishment outside the territory of the Member
                                                                                 State ?
       ( c ) imposes a customs duty of ECU 750 per tonne for
              bananas in excess of the tariff quota ?                       2 . If so, does that permit such exclusion where the
                                                                                 prospective employer is the Member State itself?
2 . Should those parts of Commission Regulations ( EEC )                    3 . Also, if so, does that permit such exclusion where the
       Nos 1442/93 ( 2 ) and 1443/93 ( 3 ), as amended and                       prospective employment is in another Member State ?
       supplemented by later regulations, which limit, reduce
       or restrict unnecessarily and in a disproportionate                  (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
       manner in relation to the objective pursued the right of
       access of Somali bananas, as guaranteed by the
       Convention referred to in Question 1 and by Council
       Regulation ( EEC ) No 404/93 , be considered valid, in
       particular inasmuch as they :
                                                                            Action brought on 30 November 1995 by the Commission
                                                                            of the European Communities against the Hellenic
        ( a ) set the final date for the submission of applications                                         Republic
              for import licences up to three months and three                                         Case C-375/95 )
              weeks before the transaction and limit the period
              for submitting applications to one ( full ) week on                                        ( 96/C 31 /22
              only four occasions a year;
                                                                            An action against the Hellenic Republic was brought before
                                                                            the Court of Justice on 30 November 1995 by the
        ( b ) provide, in the event of non-compliance with the              Commission of the European Communities, represented by
              deadline , for forfeiture , in all cases, of the right to     Dimitrios Gouloussis, Legal Adviser to the Commission,
              import for an entire quarter, without laying down             with an address for service in Luxembourg at the office of
               specific rules or derogations for situations of force         Carlo Gomez de la Cruz, of the Commission's Legal Service,
              majeure, unforeseeable circumstances and similar              Wagner Centre .
               situations ;
                                                                            The applicant claims that the Court should:
        ( c ) make the issue of the licence subject to the prior
               deposit of a security ?                                       1 . declare that, by introducing and maintaining in force in
                                                                                  connection with the taxation of imported second-hand
                                                                                  cars
0 ) OJ No L 47, 25 . 2 . 1993 , p . 1 .
( 2 ) OJ No L 142 , 12 . 6 . 1993 , p . 6 .                                       ( a ) Article 1 of Law No 363/1976 ( as amended by Law
 ( 3 ) OJ No L 142 , 12 . 6 . 1993 , t5 . 16 .                                          No 1676/1986 ) on the calculation, in connection
                                                                                        with the special consumption tax, of the taxable
                                                                                        value, with a deduction of only 5 % for each year of
                                                                                        use, up to a maximum of 20% , from the selling
                                                                                        price of equivalent new vehicles; and
 ---pagebreak--- No C 31 / 12               EN               Official Journal of the European Communities                                    3 . 2 . 96
      ( b ) Article 3 ( 1 ) of Law No 363/76 ( as last replaced by     similar reduction is provided for second-hand cars with the
            Article 2 ( 7 ) of Law No 2187/ 1994 ) which governs       latest technology this has created discrimination to the
            payment of the flat-rate added special duty without        detriment of imported second-hand cars with the latest
            any reduction for used cars; and                           technology in relation to equivalent Greek cars, since the
                                                                       residual portion of the reduced tax is incorporated in the
      ( c ) Article 1 of Law No 1858/1989 , as subsequently            latters' value, whereas the special consumption tax is
            amended by Laws No 1882/1990 ( Articles 37 ( 2 )           charged on the importation of the former without the
            and 42 ( 1 )) and No 2093/ 1992 ( Article 10 ) which       reduction provided for anti-pollutant cars .
            now applies with Article 2 ( 1 ) of Law
            No 2187/1 994, by which tax advantages ( reduction         The practical difficulties invoked by the Hellenic Republic
            of the special consumption tax ) are granted only to       cannot justify such an infringement of the first paragraph of
            new anti-pollutant cars and not to imported                Article 95 of the Treaty, as is clear from the consistent
            second-hand anti-pollutant cars,                           case-law of the Court of Justice .
      the Hellenic Republic is in breach of its obligations
      pursuant to Article 95 of the EC Treaty;
2 . order the Hellenic Republic to pay the costs .
                                                                       Reference for a preliminary ruling by the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Roma — Sezione Distaccata di Tivoli by
                                                                       order of that court of 15 and 22 November 1995 in criminal
A. Special consumption tax                                               proceedings against Tersilio Onorati and Palma Marulli
                                                                                     ( Cases C-377/95 and C-378/95 )
This tax is levied on cars manufactured in Greece when they
                                                                                                  ( 96/C 31 /23 )
first circulate as new cars and also on imported cars on
importation either new or second-hand . Accordingly the tax
is not levied on second-hand Greek cars .                              Reference has been made to the Court of Justice of the
                                                                       European Communities by orders of the Pretura
                                                                       Circondariali di Roma — Sezione Distaccata di Tivoli
The tax is levied on imported second-hand cars on the basis
of their presumed value , which is calculated by means of a            ( Rome District Magistrate's Court, Tivoli Division ) of 15
reduction from the price of equivalent new cars of 5 % for             and 22 November 1995 , which were received at the Court
each year of use , up to a maximum of 20% . In the                     Registry on 4 December 1995 , for a preliminary ruling in
Commission 's view, since                                              criminal proceedings against Tersilio Onorati and Palma
                                                                       Marulli
( a ) the actual reduced value of the cars exceeds 5 % per
        annum ;
                                                                       The questions referred by the Pretura Circondariale di
                                                                       Roma — Sezione Distaccata di Tivoli to the Court of Justice
                                                                       for a preliminary ruling are identical with those in Case
( b ) that reduction is not linear, but greater in the first years     C-58/95 ( M.
        and less subsequently;
                                                                       (>) OJ No C 119 , 13 . 5 . 1995 , p . 6 .
( c ) there is no provision for a reduction greater than
        20% ,
those rules result in higher taxation of imported cars,
because the residual ( incorporated ) portion of the tax in the
value of second-hand cars manufactured in Greece is less
than the amount of the tax levied on imported second-hand              Appeal brought on 27 November 1995 by the French
cars .
                                                                       Republic against the judgment delivered on 18 September
                                                                       1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
Accordingly this amounts to a breach of the first paragraph            Case T-548/93 ( ] ) between Ladbroke Racing Ltd and the
of Article 95 of the Treaty .                                          Commission of the European Communities, supported by
                                                                                            the French Republic
B.      Flat-rate added special duty                                                         ( Case C-379/95 P)
                                                                                                    96/C 31 /24
The method of calculating this duty is the same as that used
in calculating the special consumption tax. Consequently
                                                                       An appeal against the judgment delivered on 18 September
the same comments as above apply by analogy.
                                                                        1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
C. Special consumption tax on anti-pollutant cars                      Case T-548/93 between Ladbroke Racing Ltd and the
                                                                        Commission of the European Communities was brought
By successive laws the Hellenic Republic has reduced in                 before the Court of Justice of the European Communities on
recent years the special consumption tax levied on new cars            27 November 1995 by the French Republic, represented by
with the latest technology ( anti-pollutant cars ). Since no           Jean-Marc Belorgey, Catherine de Salins and Jean-Francois