CELEX: C1996/046/18
Language: en
Date: 1996-02-17 00:00:00
Title: Action brought on 27 December 1995 by Italian Republic against Commission of the European Communities (Case C-406/95)

No C 46/ 10            EN                   Official Journal of the European Communities                                     17 . 2 . 96
preliminary ruling in the case of B. R. D. ( Bureau RIK                Action brought on 27 December 1995 by Italian Republic
DECAN-Business Research & Development ) NV v. Belgian                      against Commission of the European Communities
State on the following questions :                                                            ( Case C-406/95 )
1 . Must Article 18 ( 4 ) of the Sixth VAT Directive                                             ( 96/C 46/ 18 )
    ( 77/388/EEC ) ( J ) be interpreted as permitting a Member
    State not to refund a VAT credit from a given tax period           An action against the Commission of the European
    and not to carry it forward to a following period, but to          Communities was brought before the Court of Justice of the
    retain it on the ground that, and for so long as , it has a        European Communities on 27 December 1 995 by the Italian
    claim against the taxpayer in question relating to a               Republic, represented by Professor Umberto Leanza, acting
    previous tax period, if that claim is disputed by the              as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato,
    taxpayer and thus does not yet constitute a definitive             with an address for service in Luxembourg at the Italian
    legal title, where the Member State has not received any           Embassy, 5 Rue Marie-Adelaide .
    authorization under Article 27 of the Sixth VAT
    Directive ?                                                        The applicant claims that the Court should:
2 . If Question 1 is answered in the affirmative, must                 — annul the Commission 's decision of 4 October 1995
    Article 18 (4 ) of the Sixth VAT Directive, in conjunction             concerning the conditions imposed on the second
    with the principle of proportionality, be interpreted as               operator of GSM radiotelephony services in Italy ('),
    permitting the Member State to provide that the
    necessity or urgency of the retention may not be                   — order the Commission to pay the costs .
    contested in any way, and that the retention may not be
    replaced in any way by a guarantee or annulled, so long            Pleas in law and main arguments
    as the disputed VAT claim has not been the
    subject-matter of a final judicial decision ?                      1 . In order to abolish the alleged disadvantage suffered by
                                                                           the second operator, Italy is obliged under the contested
(') OJ No L 145 , 13 . 6 . 1977, p. 1 .                                    decision to require that 'Telecom Italia Mobile make an
                                                                           identical payment' or to adopt, after receiving the
                                                                           agreement of the Commission, 'corrective measures
                                                                           equivalent in economic terms to the payment made by
                                                                           the second operator'.
Reference for a preliminary ruling from the Finanzgericht                  However, in the steps taken prior to the adoption of the
Munchen by decision of that court of 14 December 1995 in                   contested decision, the possibility of requiring that
the case of Bioforce GmbH v.                Oberfinanzdirektion            Telecom Italia Mobile make an identical payment —
                               Miinchen                                    considered by the Commission to be the most
                                                                           reasonable course of action — was never discussed . Such
                         ( Case C-405/95 )                                 a measure was never envisaged at that stage and the
                            ( 96/C 46/17)                                  Italian Government had no opportunity to express its
                                                                           views on the subject. That fact alone is sufficient to
Reference has been made to the Court of Justice of the                     support the view that Italy's right to a fair hearing was
European Communities by a decision of the Finanzgericht                    infringed, but also in the case of the equivalent
                                                                           corrective    measures     referred   to  in  the    second
Miinchen ( Financial Court, Munich ) of 14 December 1995 ,
which was received at the Court Registry on 27 December                    subparagraph of Article 1 of the contested decision, the
1 995 , for a preliminary ruling in the case of Bioforce GmbH              discussions were incomplete and did not ensure the right
v. Oberfinanzdirektion Miinchen on the following                           to a fair hearing.
questions :
                                                                       2 . The contested decision is predicated on the assumption
1 . Is   the    Common         Customs    Tariff  —    Combined            that the Italian Government 'has imposed an initial
    Nomenclature 1 994 — to be interpreted as meaning that                 payment for the grant of a second concession' in relation
                                                                           to GSM radiotelephony .
    products such as Echinacea Drops ( extract of echinacea
    purpurea e herba and e radice in 56,1 % alcohol by                     That assumption is incorrect. The Italian Government
    weight, for protection against colds and influenza and                 has not exacted any initial payment from tenderers
    for strengthening resistance to colds ) are to be classified           competing for the grant of a second GSM concession.
    under heading 3004 — Medicaments consisting of                         Accordingly, a national measure for the purposes of
    unmixed products for therapeutic or prophylactic uses,                 Article 90 ( 1 ) does not exist in the situation in
    put up . . . for retail sale ?                                         question.
2 . If not, is the Common Customs Tariff to be interpreted             3 . The contested decision is unlawful and should therefore
    as meaning that products such as those referred to in                   be annulled, since it is based on the speculation that the
     Question 1 are to be classified as 'other' spirituous                  first operator will abuse its dominant position, conduct
     beverages under subheading 2208 90 69 ?                               which is merely potential, not actual : it has not been
                                                                            shown that such abuse has taken place, nor is it possible
                                                                            that such abuse ever could take place .
 ---pagebreak--- 17 . 2 . 96               EN                    Official Journal of the European Communities                                        No C 46/ 11
4 . According to the decision, GSM radiotelephony services                 Commerce ( Commercial Court), Paris, ( First Chamber A ) of
       ' should . . . probably be regarded as also constituting a          27 November 1995 , received at the Court Registry on
       market separate from the market for analogue mobile                 29 December 1995 , for a preliminary ruling in the case of
       telephony'. In the view of the Italian Government, that             Eurotunnel SA, France Manche SA, Eurotunnel PLC and
       conclusion is mistaken and, in any event, insufficiently            The Channel Tunnel Group Limited v. SA SNAT Nouvelle
       substantiated .                                                     d'Armement Transmanche — Voluntary interveners :
                                                                           International Duty Free Confederation , Airport Operators
5 . The contested decision is vitiated by errors of assessment             Association Limited, Cie Maritime Bretagne Angleterre
       and a defective statement of reasons .
                                                                           Irlande and Passenger Shipping Association Limited — on
                                                                           the following questions :
0 ) OJ No L 280 , 23 . 11 . 1995 , p . 49 .
                                                                           1 . Given the fact that Eurotunnel did not bring an action
                                                                                  pursuant to Article 173 for the annulment of those parts
                                                                                  of Council Directives 91 /680/EEC and 92/ 12/EEC
                                                                                  relating to taxation (VAT and excise duty ) on
Action brought on 22 December 1995 by the Kingdom of                              cross-channel links ( J ) and that an application brought
Belgium against the Commission of the European                                    by Eurotunnel in the High Court of Justice was
                               Communities
                                                                                  dismissed by decision of 17 February 1995 , will an
                           ( Case C-407/95 )                                      application for their annulment brought by Eurotunnel
                               ( 96/C 46/ 19 )                                    lie pursuant to Article 177 of the Treaty ?
An action against the Commission of the European                           2 . If so, did the Chamber adopt those directives
Communities was brought before the Court of Justice of the                        lawfully ?
European Communities on 22 December 1995 by the
Kingdom of Belgium, represented by J. Devadder, Director                          In the alternative, does Directive 94/4/EC ( 2 ) cover a
of Administration in the Ministry of Foreign Affairs,                             possible annulment of those two directives ?
Foreign Trade and Development Aid, with an address for
service in Luxembourg at the Belgian Embassy, 4 Rue des                    3 . In the event of annulment, must the fact that SA SNAT
Girondins .                                                                       — Nouvelle d'Armement Transmanche — applied the
                                                                                  fiscal laws adopted pursuant to those directives be
The applicant claims that the Court should :                                      imputed to it as a fault ? If so, as from what date was the
                                                                                  fault committed ?
annul Commission Regulation ( EC ) No 2358/95 on the
exceptional allocation of a quantity additional to the tariff               ( J ) Council Directive 91 /680/EEC, Article 1 ( 22 ) ( Article 28k of
quota for imports of bananas during the fourth quarter of                         Directive 77/388/EEC ) ( OJ 1991 L 376 , pp . 1 and 17 ); Council
 1995 as a result of tropical storms Iris, Luis and Marilyn ( 1 ),                Directive 92/ 12/EEC, Article 28 ( OJ 1992 L 76 , pp . 1 and
and order the Commission to pay the costs .                                       12 ).
                                                                            ( 2 ) Council Directive 94/4/EC ( OJ 1994 L 60, p . 14 ).
Pleas in law and main arguments
The pleas in law and main arguments are the same as those
 invoked against Regulation ( EC ) No 2791 /94 in Case
 C-9/95 ( 2 ).
 (') OJ No L 241 , 10 . 10 . 1995 , p . 5 .
                                                                            Reference for a preliminary ruling from the
 ( 2 ) OJ No C 54, 4 . 3 . 1995 , p . 9 .                                   Verwaltungsgericht Gelsenkirchen by order of that court of
                                                                            21 December 1995 in the case of Hellmut Marschall v. Land
                                                                                                    Nordrhein-Westfalen
                                                                                                     ( Case C-409/95 )
                                                                                                        ( 96/C 46/21 )
 Reference for a preliminary ruling from the Tribunal de
 Commerce de Paris ( First Chamber A) by judgment of that
 court of 27 November 1995 in the case of Eurotunnel SA,                     Reference has been made to the Court of Justice of the
 France Manche SA, Eurotunnel PLC and the Channel                            European Communities by an order of the First Chamber of
 Tunnel Group Limited v. SA SNAT Nouvelle d'Armement                         the Verwaltungsgericht Gelsenkirchen ( Gelsenkirchen
                                                                             Administrative Court) of 21 December 1995 , which was
 Transmanche — Voluntary interveners: International Duty
 Free Confederation, Airport Operators Association                           received at the Court Registry on 29 December 1995 , for a
 Limited, Cie Maritime Bretagne Angleterre Irlande and                       preliminary ruling in the case of Hellmut Marschall v. Land
              Passenger Shipping Association Limited                         Nordrhein-Westfalen on the following question:
                             ( Case C-408/95 )                               Does Article 2(1 ) and ( 4 ) of Council Directive 76/207/EEC
                                 ( 96/C 46/20 )                              of 9 February 1976 on the implementation of the principle
                                                                             of equal treatment for men and women as regards access to
  Reference has been made to the Court of Justice of the                     employment, vocational training and promotion, and
  European Communities by judgment of the Tribunal de                        working conditions ( ] ) preclude a rule of national law under