title: JUDGMENT OF THE COURT of 17 July 1997 in Case C-183/95 (reference for a preliminary ruling from the President of the College van Beroep voor het Bedrijfsleven): Affish BV v. Rijksdienst voor de Keuring van Vee en Vlees (Veterinary inspection - Protective measure - Principle of proportionality - Principle of the protection of legitimate expectations - Validity of Commission Decision 95/119/EC)

text:
C 295/4               EN                   Official Journal of the European Communities                                     27 . 9 . 97
                JUDGMENT OF THE COURT                                      provisions similar to those of Article 18 of the
                        ( Sixth Chamber)                                   agreement between the European Economic
                                                                           Community and the Kingdom of Sweden, signed in
                         of 17 July 1997                                   Brussels on 22 July 1972, concluded and approved on
in Joined Cases C-114/95 and C-115/95 (reference for                       behalf of the Community by Council Regulation
a preliminary ruling from the 0stre Landsret): Texaco                      (EEC) No 2838/72 of 19 December 1972 .
A/S v. Middelfart Havn and Others and Olieselskabet
      Danmark amba v. Trafikministeriet and Others (')                3 . Community law does not preclude the imposition by a
  (Maritime transport — Goods duty — Import surcharge)                     Member State of such an import surcharge on goods
                                                                           imported directly from a non-member country with
                          ( 97/C 295/05 )                                  which the Community has not concluded an
                                                                           agreement.
                 (Language of the case: Danish)
                                                                      4 . Where a Member State has imposed or approved a
   (Provisional translation; the definitive translation will be            duty contrary to Community law, it is required in
           published in the European Court Reports)                        principle to repay the duty levied in breach of
                                                                           Community law. If the proceeds of the duty have been
In Joined Cases C-114/95 and C-115/95 : reference to the                   allocated to independent operators subject to local
Court under Article 177 of the EC Treaty from the 0stre                    authority control, it is not contrary to Community law
Landsret (Denmark ) for a preliminary ruling in the                        for the action for repaymemt of those duties to lie
proceedings pending before that court between Texaco A/S                   against such operators, provided that the rules
 and Middelfart Havn, Arhus Havn, Struer Havn, Alborg                      governing such actions are not less favourable than
 Havn, Fredericia Havn, Norre Sundby Havn, Hobro                           those governing similar domestic actions and are not
 Havn, Randers Havn, Abenra Havn, Esbjerg Havn,                            so framed as to render virtually impossible or
 Skagen Havn, Thyboron Havn and between Olieselskabet                      excessively difficult the recovery of duty unduly paid.
 Danmark amba and Trafikministeriet, Fredericia
 Kommune, Koge Havn, Odense Havnevsesen, Holstebro                   5 . It is not contrary to Community law for a national
 Struer Havn, Vejle Havn, Abenra Havn, Alborg                              limitation period applicable to claims for repayment of
 Havnevassen, Arhus Havnevaesen, Frederikshavn Havn,                       duties levied in breach of Article 95 of the Treaty or a
 Esbjerg Havn on the interpretation of Articles 9 to 13 , 18               provision similar to Article 18 of the agreement
 to 29 , 84, 86 , 90 and 95 of the EEC Treaty, of Council                  concluded between the European Economic
 Regulation ( EEC ) No 4055/86 of 22 December 1986                          Community and the Kingdom of Sweden to run from
 applying the principle of freedom to provide services to                  an earlier point in time than that from which the
 maritime transport between Member States and between                      duties were discontinued.
 Member States and third countries ( OJ L 378 , 31 . 12 .
 1986 , p. 1 ), and of Council Regulation ( EEC) No 4056/86           (') OJ C 159 , 24 . 6 . 1995 .
 of 22 December 1986 laying down detailed rules for the
 application of Articles 85 and 86 of the Treaty to
 maritime transport ( OJ L 378 , 31 . 12 . 1986 , p. 4 ), and of
 Articles 6 and 1 8 of the Agreement between the European
 Economic Community and the Kingdom of Sweden,
 signed in Brussels on 22 July 1972, concluded and
 approved on behalf of the Community by Council                                      JUDGMENT OF THE COURT
 Regulation ( EEC ) No 2838/72 of 19 December 1972 ( OJ,                                         of 17 July 1997
 English Special Edition 1972 ( 31 December), p. 98 ), the
 Court ( Sixth Chamber ), composed of G. F. Mancini,                  in Case C-183/95 (reference for a preliminary ruling from
 President of the Chamber, J. L. Murray and P. J. G.                  the President of the College van Beroep voor het
 Kapteyn ( Rapporteur ), Judges; F. G. Jacobs, Advocate              Bedrijfsleven): Affish BV v. Rijksdienst voor de Keuring
 General; H. von Holstein, Deputy Registrar, for the                                           van Vee en Vlees H
 Registrar, gave a judgment on 17 July 1997, in which it               (Veterinary inspection — Protective measure — Principle
 has ruled :
                                                                       of proportionality — Principle of the protection of
                                                                       legitimate expectations — Validity of Commission
  1 . It is contrary to Article 95 of the EEC Treaty for a                                    Decision 95/1 19/EC)
      Member State to impose a 40% import surcharge on a
      general duty levied on goods loaded, unloaded, or                                             97/C 295/06 )
      otherwise taken on board or landed within its ports or
      in the deep-water approach channels to its ports where                           (Language of the case: Dutch)
      goods are imported by ship from another Member
      State .
                                                                         (Provisional translation; the definitive translation will be
  2 . Such an import surcharge is also contrary to                              published in the European Court Reports)
      Community law where it is applicable to goods
      imported from a non-member country with which the                In Case C-183/95 : reference to the Court under Article 177
      Community has concluded an agreement containing                  of the EC Treaty from the President of the College van
 ---pagebreak--- 27. 9 . 97             EN                  Official Journal of the European Communities                                      C 295/5
Beroep voor het Bedrijfsleven ( Administrative Court for              2 . orders the appellant to pay the costs.
Trade and Industry ) ( Netherlands ) for a preliminary ruling
in the proceedings pending before that court between                  H OJ C 208 , 12 . 8 . 1995 .
Affish BV and Rijksdienst voor de Keuring van Vee en
Vlees — on the validity of Commission Decision 95/119/
EC of 7 April 1995 concerning certain protective measures
with regard to fishery products originating in Japan ( OJ
L 80, 8 . 4. 1995, p. 56) — the Court, composed of: G. C.
Rodriguez Iglesias, President, J. L. Murray and L. Sevon
(Rapporteur), Presidents of Chambers, P. J. G. Kapteyn, C.                           JUDGMENT OF THE COURT
Gulmann, D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P.
Jann, H. Ragnemalm and M. Wathelet, Judges; G.                                                ( Sixth Chamber)
Cosmas, Advocate-General; H. A. Riihl, Principal                                               of 17 July 1997
Administrator, for the Registrar, has given a judgment on
17 July 1997, in which it has ruled:                                  in Case C-242/95 (reference for a preliminary ruling from
                                                                      the Østre Landsret): GT-Link A/S v. De Danske Statsbaner
                                                                                (DSB ) O
Examination of Commission Decision 95/119/EC of
7 April 1995 concerning certain protective measures with              (Transport by sea — Harbour duties on shipping and
regard to fishery products originating in Japan has not               goods — Import surcharge — Abuse of a dominant
revealed any factor of such a kind as to affect its validity.                                      position)
                                                                                ( 97/C 295/08 )
H OJ C 208 , 12 . 8 . 1995 .
                                                                                (Language of the case: Danish)
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
               JUDGMENT OF THE COURT
                        ( Sixth Chamber)
                                                                      In Case C-242/95 : reference to the Court under Article 177
                         of 17 July 1997                              of the EC Treaty from the 0stre Landsret (Denmark ) for a
in Case C-2 19/95 P: Ferriere Nord SpA v. Commission of               preliminary ruling in the proceedings pending before that
                 the European Communities (')                         court between GT-Link A/S and De Danske Statsbaner
                                                                      ( DSB ) on the interpretation of Articles 9 to 13 , 84 , 86, 90
 (Competition — Infringement of Article 85 of the EEC                 and 95 of the EEC Treaty, the Court ( Sixth Chamber),
                               Treaty)                                composed of: G. E Mancini, President of the Chamber,
                          ( 97/C 295/07)                              J. L. Murray and P. J. G. Kapteyn ( Rapporteur), Judges;
                                                                      F. G. Jacobs, Advocate-General; H. von Holstein, Deputy
                                                                      Registrar, for the Registrar, gave a judgment on 17 July
                 (Language of the case: Italian)                       1997, in which it has ruled:
   (Provisional translation; the definitive translation will be
                                                                       1 . It is contrary to Article 95 of the EEC Treaty for a
          published in the European Court Reports)                         Member State to impose a 40% import surcharge on a
                                                                           general duty levied on goods loaded, unloaded, or
In Case C-219/95P: Ferriere Nord SpA, a company                            otherwise taken on board or landed within its ports or
incorporated under the laws of Italy, established in                       in the deep-water approach channels to its ports where
 Osoppo ( Italy), represented by Wilma Viscardini Dona, of                 goods are imported by ship from another Member
the Padua Bar, with an address for service in Luxembourg                   State.
 at the Chambers of Ernest Arendt, 8— 10 Rue Mathias
Hardt — appeal against the judgment of the Court of First
Instance ( First Chamber ) of 6 April 1995 in Case T-143/             2 . It is for the domestic legal order of each Member State
 89 Ferriere Nord v. Commission [ 1995] ECR 11-917,                        to lay down the detailed procedural rules, including
 seeking to have that judgment set aside, the other party to               those relating to the burden of proof, governing
the proceedings being Commission of the European                           actions for safeguarding rights which individuals
 Communities ( Agent: Enrico Traversa, assisted by Alberto                 derive from the direct effect of Article 86 of the
 Dal Ferro ) — the Court ( Sixth Chamber), composed of:                    Treaty, provided that such rules are not less favourable
 G. F. Mancini, President of the Chamber, J. L. Murray,                    than those governing similar domestic actions and do
 P. J. G. Kapteyn, G. Hirsch and H. Ragnemalm                              not render virtually impossible or excessively difficult
 ( Rapporteur), Judges; P. Leger, Advocate-General; R.                     the exercise of rights conferred by the Community
 Grass, Registrar, has given a judgment on 17 July 1997, in                legal order.
 which it:
                                                                       3 . Where a public undertaking that owns and operates a
 1 . dismisses the appeal;                                                 commercial port occupies a dominant position in a


title: Action brought on 9 October 1995 by Service pour le Groupement d'Acquisitions (SGA) against the Commission of the European Communities (Case T-189/95)

text:
9 . 12 . 95            EN                 Official Journal of the European Communities                                    No C 333/ 19
The applicant claims that the Court should:                               the other four pleas advanced by the applicant ) order
                                                                          the Commission to examine all internal documents
— annul the decision of the Commission of 9 November                      connected with the adoption of the contested decision,
     1994 refusing the applicant full reimbursement of the                in order to determine whether that decision was adopted
     difference between the medical expenses actually                     in accordance with the principle of collegiality and the
     incurred and payments from the Joint Sickness                        Commission's rules of procedure;
     Insurance Scheme, in accordance with Article 24 of
     Annex X to the Staff Regulations,                               3 . order the defendant to pay all of the costs of the
                                                                          proceedings.
— annul, in so far as may be necessary, the decision
     adopted by the Commission on 3 July 1995 in response            Pleas in law and main arguments:
    to the complaint;
                                                                     1 . The Commission has failed, with regard to the aid
— order the defendant to pay in full the difference between               measures approved in the contested decision, to initiate
    the expenses actually incurred and payments from the                  without delay the formal procedure under Article 93 ( 2 )
    Joint Sickness Insurance Scheme, amounting in the                     of the EC Treaty, since the aid provisions of the Law on
    present case to Bfr 253 353 ;                                         the fiscal regime in respect of environmental protection
                                                                          give rise to a number of serious problems which cannot
— declare that the General Provisions implementing the                    be resolved by carrying out the prima facie examination
    first and second paragraphs of Annex X to the Staff                   provided for by Article 93 ( 3 ).
    Regulations are unlawful, and consequently withdraw
    them;                                                            2 . Inadequate and contradictory reasoning.
— order the defendant to pay all the costs .                         3 . Breach of general principles of Community law:
                                                                          deviation from its own published guidelines , in
Pleas in law and main arguments:                                          particular the 'framework rules on aid for
                                                                          environmental protection' ( OJ 1994 C 72 , p. 3 ).
The pleas in law and main arguments are the same as those
relied on in Case T-21 /95 ( ).                                     4 . The Commission has exceeded its powers : approval of
                                                                          an aid measure of unspecified duration on condition
(') OJ No C 87, 8 . 4 . 1995 , p . 15 .
                                                                          that, following a specific date, it is not to be further
                                                                          implemented without first having been renotified to the
                                                                          Commission : approval was thus granted subject to a
                                                                          ' resolutive condition '.
                                                                     5.   It is assumed that the Commission has failed to observe
                                                                          the principle of collegiality: hence the application for
Action brought on 9 October 1995 by NV Waterleiding                       measures of inquiry.
Maatschappij 'Noord-West Brabant' against the
         Commission of the European Communities                      6 . The Commission wrongly refused to review its earlier
                        ( Case T-188/95 )                                 judgment concerning previously notified aid measures
                          ( 95/C 333/36 )                                 which hat not yet been implemented, irrespective of the
                                                                          fact that the new framework rules had meanwhile
                                                                          entered into force .
                (Language of the case: Dutch)
                                                                     (') That decision, addressed to the Netherlands Government,
An action against the Commission of the European                         declares that the aid measures contained in the Law on the fiscal
Communities was brought before the Court of First                        regime in respect of environmental protection, whereby taxes
Instance of the European Communities on 9 October 1995                   are to be introduced in relation to groundwater, waste products,
by NV Waterleiding Maatschappij 'Noord-West Brabant',                    fuels and uranium 235 , are compatible with the common
established pursuant to statute at Oudenbosch                            market .
( Netherlands ), represented by P. H. L. M. Kuypers, of the
Breda Bar, and H. M. Gilliams, of the Brussels Bar, with an
address for service in Luxembourg at the Chambers of
J.-M. Bauler, 47 Grand-Rue .
                                                                     Action brought on 9 October 1995 by Service pour le
The applicant claims that the Court should :                         Groupement d'Acquisitions ( SGA ) against the Commission
                                                                                of the European Communities
1 . declare the action admissible and well-founded and
                                                                                Case T-189/95 )
     consequently annul decision SG(95 ) D/8442 of the
     Commission of 3 July 1995 concerning aid case No                                           ( 95/C 333/37 )
     NN 13/95 ( Netherlands — Law on the fiscal regime in
     respect of environmental protection ) ( [ );                                      (Language of the case: French)
2 . ( only in the event that the Court considers that the            An action against the Commission of the European
     contested decision cannot be annulled on the grounds of         Communities was brought before the Court of First
 ---pagebreak--- No C 333/20            EN                 Official Journal of the European Communities                                     9 . 12 . 95
Instance of the European Communities on 9 October 19 95              Action brought on 10 October 1995 by Société de
by Service pour le Groupement d'Acquisitions ( SGA ),                Distribution Mécanique et d'Automobiles ( Sodima ) against
established at Istres ( France ), represented by Jean-Claude               the Commission of the European Communities
Fourgoux, of the Paris Bar, with an address for service in                                  ( Case T- 190/95 )
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue
Beatrix de Bourbon .                                                                          ( 95/C 333/38 )
                                                                                (Language of the case: French)
The applicant claims that the Court should :
— declare that the Commission has wrongfully failed to               An action against the Commission of the European
     act ,                                                           Communities was brought before the Court of First
                                                                     Instance of the European Communities on 10 October 1995
— annul the implicit decision not to act upon the request            by Societe de Distribution Mecanique et d'Automobiles
     for provisional measures ,                                      ( Sodima ), established at Istres ( France ), represented by
                                                                    Jean-Claude Fourgoux, of the Paris Bar, with an address for
— declare      that  the   Commission     has   incurred  non       service in Luxembourg at the Chambers of Pierrot Schiltz,
     contractual liability and award the applicant the sum of        4 Rue Beatrix de Bourbon .
     ECU 200 000 ,
                                                                     The applicant claims that the Court should :
— order the Commission to pay the costs .
                                                                     — declare that the Commission has wrongfully failed to
Pleas in law and main arguments:                                         act ,
The applicant states that it operates as an intermediary in the      — annul the implicit decision refusing to communicate
distribution of all makes of automobiles, undertaking                    documents to it,
parallel imports as agent for the final consumer, in
accordance with the provisions of Article 3 ( 11 ) of               — annul the implicit decision to deal with matters
Regulation ( EEC ) No 123/85 , as referred to in Regulation              jointly,
( EEC ) No 1475/95 . On 24 June 1994 it lodged with the             — declare       that     the    Commission       has    incurred
Commission a complaint on the basis of Article 85 of the EC              non-contractual liability and order it to pay
Treaty and Regulations ( EEC ) No 17 and ( EEC ) No 123/85 ,             compensation for the damage suffered up to the sum of
criticizing the steps taken by the PSA group in relation to the          ECU 200 000 per year from 14 March 1995 ,
Peugeot and Citroen dealers representing its foreign
subsidiaries to prevent them from agreeing to sell vehicles to      — order the Commission to pay the costs .
French intermediaries . On 24 April 1995 , having received
no satisfactory response from the Commission, the                    Pleas in law and main arguments:
applicant was forced to call upon it to act, in accordance
with the provisions of Article 175 of the Treaty .                   The applicant company, a Peugeot concessionaire, contests
                                                                     the Commission's refusal to act on a complaint lodged by it
The applicant considers that the Commission has failed in            against PSA concerning the infringement, in the drafting of
the present case to comply with the guarantees provided for          its dealership agreement and the use made thereof, of
by the Community legal order in administrative procedures,           Article 85 of the EC Treaty and Regulation ( EEC )
including in particular the obligation incumbent on the              No 123/85 . It further complains, first, of the failure by
institution to carry out a careful and impartial examination         the defendant institution to communicate to it PSA's
of all the relevant aspects of the question submitted for its        observations on the complaint and PSA 's answers to certain
consideration and the right of the party concerned to make           questions posed in the context of the investigation and,
its views known and to be given an adequate statement of             second, of the defendant's intention, which is apparent from
reasons for the decision . It maintains that the Commission
                                                                     the letter of 12 September 1995 , to deal with the Sodima
had no excuse for not dealing with the matter, since it knew         matter jointly with other matters also relating to Peugeot's
that its failure to adopt a definitive position was making it        dealership system.
possible for agreements and practices to be freely adopted
with a view to the partitioning of the market, constituting          As regards the Commission's failure to act, the applicant
infringements which are regarded as particularly serious .           considers that it failed in the present case to carry out a full
The applicant consequently requests the Court to declare             inquiry into the matter in the context of the administrative
that the Commission has wrongly failed to act.                       procedure and to examine carefully, impartially, and with
                                                                     full knowledge of all the relevant elements of the case, the
The applicant further states that the situation has been             factual and legal aspects submitted for its consideration .
aggravated as a result of the Commission 's failure to act, and
that it is experiencing increasing difficulties in obtaining a       As to the implicit refusal to communicate Peugeot's
normal level of supplies . It therefore seeks an order               observations or any of the questions which may have been
requiring the Commission to pay it compensation for the              put to Peugeot, the applicant considers that the principle of
damage which it is suffering as a result of the shortage of          equality of arms, which must apply not only to the specific
supplies of vehicles from the PSA group .                            victims of anti-competitive practices but also to
                                                                     undertakings which may be found to have committed an
                                                                     infringement and to the Commission, does not permit the


title: Case C-55/16: Order of the Court (Ninth Chamber) of 30 June 2016 (request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie — Romania) — Evo Bus GmbH v Direcția Generală Regională a Finanțelor Publice Ploiești (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Common system of value added tax — Right to reimbursement — Eighth Directive 79/1072/EEC — Conditions for obtaining reimbursement — Imposition of conditions other than those laid down in Articles 3 and 4 — Obligation to provide proof of payment of the tax — Whether permissible)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/17

         Order of the Court (Ninth Chamber) of 30 June 2016 (request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie — Romania) — Evo Bus GmbH v Direcția Generală Regională a Finanțelor Publice Ploiești
   (Case C-55/16) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Common system of value added tax - Right to reimbursement - Eighth Directive 79/1072/EEC - Conditions for obtaining reimbursement - Imposition of conditions other than those laid down in Articles 3 and 4 - Obligation to provide proof of payment of the tax - Whether permissible))
   (2016/C 343/27)
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casaţie şi Justiţie

      Parties to the main proceedings

      Applicant: Evo Bus GmbH

      Defendant: Direcția Generală Regională a Finanțelor Publice Ploiești

      Operative part of the order

   Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, precludes legislation of a Member State under which, in order to exercise their right to reimbursement of value added tax, taxable persons are subject to a general obligation to provide proof of payment of that tax.

      (1)  OJ C 145, 25.4.2016.


title: Action brought on 23 July 1998 by the Italian Republic against the Commission of the European Communities (Case C-295/98)

text:
24.10.98              EN                  Official Journal of the European Communities                                    C 327/5
concerning the obligations inherent in the concept of a              pending before that court between Ermanno Agostini and
public service in transport by rail, road and inland                 Emanuele Agostini and Ligue Francophone de Judo et
waterway (OJ, English Special Edition 1969 (I), p. 276),             Disciplines AssocieÂes ASBL and Ligue Belge de Judo ASBL
as amended by Council Regulation (EEC) No 1893/91 of                 on the interpretation of Articles 6, 48 and 59 of the EC
20 June 1991 (OJ L 169, 29.6.1991, p. 1), in particular              Treaty, of Regulation (EEC) No 1612/68 of the Council of
Article 1(3) in conjunction with Article 4 thereof Ð the             15 October 1968 on freedom of movement for workers
Court (Sixth Chamber), composed of: H. Ragnemalm,                    within the Community (OJ, English Special Edition
President of the Chamber, R. Schintgen, G. F. Mancini,               1968 (II), p. 475), and of Council Directive 73/148/EEC
P. J. G. Kapteyn (Rapporteur) and G. Hirsch, Judges;                 of 21 May 1973 on the abolition of restrictions on
P. LeÂger, Advocate General; H. von Holstein, Deputy                 movement and residence within the Community for
Registrar, for the Registrar, has given a judgment on                nationals of Member States with regard to establishment
17 September 1998, in which it has ruled:                            and the provision of services (OJ L 172, 19.6.1973, p. 14)
                                                                     Ð the Court, composed of: G. C. Rodríguez Iglesias,
                                                                     President, C. Gulmann, H. Ragnemalm, M. Wathelet and
Regulation (EEC) No 1191/69 of the Council of 26 June                R. Schintgen, Presidents of Chambers, G. F. Mancini
1969 on action by Member States concerning the                       (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
obligations inherent in the concept of a public service in           Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
transport by rail, road and inland waterway, as amended              G. Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges,
by Council Regulation (EEC) No 1893/91 of 20 June                    G. Cosmas, Advocate General, R. Grass, Registrar, made
1991, in particular Article 1(3) and Article 4 thereof, must         an order on 8 July 1998, the operative part is as follows:
be construed as not obliging the Member States to grant
an application by a transport undertaking for partial
termination of its public service obligation, even if that
undertaking shows that maintaining the obligation                    The reference for a preliminary ruling made by the
involves economic disadvantages for it. However, the only            Tribunal de PremieÁre Instance, Namur, by order of that
ground for refusing such an application is the need to               court of 5 January 1998, is inadmissible.
ensure adequate transport services. That concept is to be
assessed, in accordance with Article 3 of Regulation
                                                                     (1) OJ C 72, 7.3.1998.
(EEC) No 1191/69, by reference to the public interest, the
possibility of having recourse to other forms of transport
and the ability of such forms to meet the transport needs
under consideration, and the transport rates and
conditions which can be quoted to users. Where there
are several ways of ensuring, while satisfying similar
conditions, the provision of adequate transport services,
the competent authorities are to select the way least costly         Action brought on 23 July 1998 by the Italian Republic
to the community.                                                       against the Commission of the European Communities
                                                                                (Case C-295/98)
(1) OJ C 74, 8.3.1997.
                                                                                (98/C 327/09)
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of Justice of
                  ORDER OF THE COURT                                 the European Communities on 23 July 1998 by the Italian
                        of 8 July 1998                               Republic, represented by Professor Umberto Leanza,
                                                                     acting as Agent, assisted by Danilo Del Gaizo, Avvocato
in Case C-9/98: Ermanno Agostini and Emanuele Agostini               dello Stato, with an address for service in Luxembourg at
v Ligue Francophone de Judo et Disciplines AssocieÂes                the Italian Embassy, 5 Rue Marie-Adelaïde.
           ASBL and Ligue Belge de Judo ASBL (1)
    (Reference for a preliminary ruling Ð Inadmissibility)
                                                                     The applicant claims that the Court should:
                        (98/C 327/08)
                (Language of the case: French)                       Ð Annul Commission Decision 98/358/EC of 6 May
                                                                         1998 (1) in so far as, in clearing the accounts presented
                                                                         by the Italian Republic in respect of expenditure for
  (Provisional translation; the definitive translation will be           1994, it declares that, for the reasons set out therein,
          published in the European Court Reports)                       the amounts referred to are not chargeable to the
                                                                         EAGGF;
In Case C-9/98: reference to the Court under Article 177
of the EC Treaty from the Tribunal de PremieÁre Instance,
Namur, for a preliminary ruling in the proceedings                   Ð Order the Commission to pay the costs.
 ---pagebreak--- C 327/6               EN                   Official Journal of the European Communities                                 24.10.98
Pleas in law and main arguments adduced in support:                   C. Cereals, rice, seeds and sugar
                                                                         (1) Identifiable loss of durum wheat Ð natural
A. Export refunds Ð inquiry on prefinancing for beef                         disaster
                                                                             The Commission adopted the adjustment in
    The Italian Government submits that, given the                           question pending a specific decision and the
    following factors, the fixed-rate adjustment ought to                    report on the disaster and the loss sustained' to be
    have been based on the minimum rate (2 % instead                         transmitted to the EAGGF.
    of 5 %):
                                                                             The Italian Government considers the adjustment
    (i) as the Conciliation Body recognised, there is no                     to be unlawful for infringement of both
         firm evidence of serious risk for the EAGGF, in                     substantive law and essential procedural
         view of the fact that comparatively few checks                      requirements. Pursuant to Articles 5(5), second
         were carried out or irregularities found;                           sentence, and 8 of Council Regulation (EEC)
                                                                             No 3492/90 (4), in conjunction with Article 2(3)(b)
                                                                             of Commission Regulation (EEC) No 3597/90 (5),
                                                                             the Commission should have adopted a specific
    (ii) the cooking of the beef prior to the customs
                                                                             decision in accordance with the procedure
         inspection does not in itself suggest substantive
                                                                             provided for in Article 13 of Council Regulation
         irregularities in so far as it was monitored by a
                                                                             (EEC) No 729/70 in order also to establish the
         State body, namely the Istituto Nazionale per le
                                                                             value of the quantities concerned.
         Conserve Alimentari (INCA), on which that
         responsibility was conferred by Ministerial Decree
         of 5 July 1989.
                                                                         (2) Quantity of durum wheat found to be missing
                                                                             at the time of the sale and transfer of cereals
                                                                             stored by an ente assuntore' (private intervention
B. Export refunds Ð inspections ex post facto under                          storage agency)
    Council Regulation (EEC) No 4045/89 (2)
                                                                             The AIMA was unable to establish and quantify
                                                                             the missing quantities of durum wheat until
    The Italian Government considers the 2 % fixed-rate                      December 1994, so it is only from that date that
    adjustment applied by the Commission to be unlawful                      the EAGGF may lawfully deduct 80 948.394
    because it was calculated on the basis of the full                       tonnes of durum wheat from the Community
    amount of the expenditure incurred. That method of                       stocks. As that new month for deduction [i.e.
    calculation is contrary to Article 8(2) of Council                       December 1994] falls within the following
    Regulation No 729/70 (3) Ð on which the Commission                       financial year, none of the negative adjustments
    based its exercise of the power to make adjustments                      required of the Italian authorities may be applied
    Ð which provides that the financial consequences                         to the financial year 1994.
    arising from irregularities or negligence are to be
    borne by the Community, with the exception of the
    consequences       of    irregularities    or    negligence
    attributable to administrative authorities or other                      The Commission's decision to deduct the missing
    bodies of the Member States.                                             quantities from the February 1994 stocks is based
                                                                             on mere supposition, whereas the finding of a
                                                                             shortfall at the time of clearing the warehouses is
                                                                             indisputable fact.
    Clearly, therefore, the Commission should have
    calculated the adjustment solely in respect of the
    amount subject to review, because the infringements                  (3) Disposal of stocks without losses
    allegedly committed by the Italian State related only to
    that amount.
                                                                             As regards the financial year 1994, on the other
                                                                             hand, the failure to notify further losses stems
                                                                             from the fact that these fall wholly within
    For the same reasons, the method of calculation used                     the tolerance threshold provided for by the
    is contrary to the principle of proportionality.                         Community legislation in force (2 %).
 ---pagebreak--- 24.10.98             EN                  Official Journal of the European Communities                                    C 327/7
         Accordingly, it is quite unlawful and unjustified          E. Wine Ð compulsory distillation
         for the EAGGF to deduct from the Community
         stocks the quantity of 4 963.651 tonnes of durum
         wheat which is based on the estimated quantity'              The Italian Government contests the new financial
         of the product in the various warehouses on the               adjustment as a matter of principle, on the ground
         date when the CCIA undertook the verification.                that there is no legal basis for regarding the Member
                                                                       States as directly responsible for the result of
                                                                       distillation, which is compulsory solely in respect of
         Commission Regulation (EEC) No 618/90 (6),                    the products covered.
         which is the basis for such verifications, provides
         that the entire quantity of durum wheat
         considered to be missing may be deducted from                 It also contests the rules for allocating the compulsory
         the Community stocks only in cases where the                  quantities between the Member States and the table
         tolerance set for the volumetric estimate (5 %                indicating the wine percentages which each producer
         more or less) is exceeded.                                    must send for compulsory distillation.
                                                                       The Italian Government also maintains that the
    (4) Durum wheat as food aid for Algeria
                                                                       EAGGF has not suffered any damage on account
                                                                       of the failure to comply with the obligations entailed
                                                                       by compulsory distillation because the volume of
         There is nothing in the documents before the                  undistilled wine is so low and because the EAGGF did
         AIMA and the EAGGF to suggest that quantities                 not assign any funds in respect of that quantity, either
         of durum wheat have been set aside to be sent as              for distillation or purchase of the alcohol, or for its
         food aid to Algeria. Accordingly, the quantities of           storage.
         the product at issue are not of Community origin
         (intervention) but of national origin and cannot
         therefore be subject to financial adjustment.              F. Meat and fish
                                                                       (1) Stock accounting adjustments for bone-in beef in
D. Wine Ð permanent abandonment of wine-growing                              the statement of annual expenditure
    areas
                                                                       (2) Inaccurate declaration of expenses for the second
                                                                             half of October 1994 (bone-in beef)
    The analysis undertaken by the Commission discloses,
    in particular, that certain areas in respect of which a
    premium was granted were either over-estimated                     The deductions in this regard for 1994 spring from a
    or under-estimated. The Community bodies have                      stock accounting verification made on 30 September
    indicated that the discrepancy in the amounts paid Ð               1993, in which the Commission detected losses of
    calculated by comparing the area for which a premium               1 204 tonnes of product.
    was granted with the area eligible for a premium Ð
    was 5 %. Subsequently, the Commission indicated that
    that percentage had to be extended to cover all the                The proposed reduction for 1993, referred to above,
    premiums paid in Italy in the 1992/93 wine year in                 was designed to recoup the value of the product
    view of the fact that the alleged infringements were so            regarded as lost.
    numerous and similar that they could be regarded as
    representative of the true state of affairs in Italy.
                                                                       AIMA's summary of the accounts from 1991 to 1995,
                                                                       indicating the alleged losses in volume, shows that
                                                                       those losses, albeit not precisely attributed to the
    The Italian Government considers the adjustment to                 reference years, collectively cover the presumed loss of
    be unlawful in respect of:                                         1 204 tonnes, and fall well short of the losses for
                                                                       which the Community legislation makes allowance.
    Ð    the representativity of the sample;
                                                                    G. Disjunction 1992 Ð illegal plantings of vines in
                                                                       Apulia
    Ð    the method       of   calculating    the   percentage
         discrepancy;                                                  The adjustment following two consecutive clearances
                                                                       of the accounts in question for the 1992 and 1993
                                                                       financial years is justified on the basis of a comparison
    Ð    the way in which the result was extended to                   of the 1989 and the 1992 figures for the winegrowing
         cover the whole territory.                                    areas.
 ---pagebreak--- C 327/8                EN                    Official Journal of the European Communities                                        24.10.98
    According to the Commission, that comparison does                   preliminary ruling in the case of Schutzverband gegen
    not explain the replanting of 2 446 hectares of vines.              Unwesen in der Wirtschaft e.V. v Warsteiner Brauerei
                                                                        Haus Cramer GmbH & Co. KG on the following
                                                                        question:
    The Italian authorities' failure to shed any light on
    that point led the Commission to conclude that the                  Does Council Regulation (EEC) No 2081/92 of 14 July
    area must be considered to have been unlawfully                    1992 on the protection of geographical indications and
    planted, giving rise without any financial aim to                   designations of origin for agricultural products and
    expenditure for the grubbing-up of that same surface                foodstuffs (1) preclude application of a national provision
    area' and it set the adjustment at LIT 31 861 816 140,              which prohibits the misleading use of a simple
    multiplying the number of hectares considered to be                 geographical designation of origin, that is, an indication in
    illegally planted by the value of the average cessation             the case of which there is no link between the
    premium paid for Apulia between 1989 and 1992                       characteristics of the product and its geographical origin?
    pursuant to Council Regulation (EEC) No 1442/88 (7).
                                                                        (1) OJ L 208, 24.7.1992, p. 1.
    The Italian Government maintains that the adjustment
    is unlawful because Council Regulation (EEC) No 822/
    87 (8) on the common organisation of the market in
    wine is silent on the question of financial penalties
                                                                        Reference for a preliminary ruling from the Oberlandes-
    applicable to individual cases and merely provides, in
                                                                        gericht Köln, by order of that court of 4 August 1998 in
    respect of vines planted or re-planted without
                                                                        proceedings concerning an administrative fine imposed on
    authorisation, for compulsory distillation of the yield
                                                                                Arnold Claasen
    to be used in the preparation of alcohol with an actual
    alcoholic strength by volume of at least 80 %                                                (Case C-313/98)
    (Articles 6(3) and 7(4)).                                                                     (98/C 327/11)
                                                                        Reference has been made to the Court of Justice of the
    In any case, the subtraction of the adjustment amount               European Communities by order of the Oberlandesgericht
    from the sum paid for grubbing-up with a premium                    Köln (Higher Regional Court, Cologne) of 4 August 1998,
    pursuant to Regulation (EEC) No 1442/88 seems                       received at the Court Registry on 13 August 1998, for a
    unwarranted, since those amounts were paid for the                  preliminary ruling in the proceedings concerning an
    grubbing-up of existing vines.                                      administrative fine imposed on Arnold Claasen, on the
                                                                        following question (1):
(1) OJ L 163, 6.6.1998, p. 28.
(2) OJ L 388, 30.12.1989, p. 18.                                        Does the amount of the charge payable under Article 8(1)
(3) OJ, English Special Edition 1970(I), p. 218.                        of the Agreement depend solely on the number of
(4) OJ L 337, 4.12.1990, p. 3.                                          axles fitted to the motor vehicle or articulated vehicle
(5) OJ L 350, 14.12.1990, p. 43.                                        combination in question, regardless of whether an axle is
(6) OJ L 67, 15.3.1990, p. 21.
                                                                        used or raised during the journey, or are tandem axles/
(7) OJ L 132, 28.5.1988, p. 3.
(8) OJ L 84, 27.3.1987, p. 1.                                           raisable axles to be left out of account in calculating the
                                                                        charge?
                                                                        (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Bundes-
gerichtshof by order of that court of 2 July 1998 in the
case of Schutzverband gegen Unwesen in der Wirtschaft
e.V. v Warsteiner Brauerei Haus Cramer GmbH & Co.
                                KG                                      Reference for a preliminary ruling from the Nederlandse
                                                                        Raad van State by judgment of that court of 10 August
                        (Case C-312/98)                                 1998 in the case of Snellers Auto's B.V. against Algemeen
                                                                                Directeur van de Dienst Wegverkeer
                          (98/C 327/10)
                                                                                (Case C-314/98)
                                                                                (98/C 327/12)
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichts-                 Reference has been made to the Court of Justice of the
hof (Federal Court of Justice) of 2 July 1998, which was                European Communities by judgment of the Netherlandse
received at the Court Registry on 12 August 1998, for a                 Raad van State (Netherlands Council of State) of


title: Case C-288/17: Request for a preliminary ruling from the Conseil d’État (France) lodged on 19 May 2017 — Fédération des fabricants de cigares and Others v Premier ministre, Ministre des Affaires sociales et de la Santé

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/12

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 19 May 2017 — Fédération des fabricants de cigares and Others v Premier ministre, Ministre des Affaires sociales et de la Santé
   (Case C-288/17)
   (2017/C 256/09)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Fédération des fabricants de cigares, Coprova, E-Labo France, Smakq développement, Société nationale d’exploitation industrielle des tabacs et allumettes (SEITA), British American Tobacco France

      Defendants: Premier ministre, Ministre des Affaires sociales et de la Santé

      Interveners: Société J. Cortès France, Scandinavian Tobacco Group France, Villiger France

      Questions referred

               1.

               Must Article 13(1) and (3) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 (1) be interpreted as prohibiting the use, on unit packets, outside packaging and tobacco products, of any brand name calling to mind certain qualities, however well-known it is?

               2.

               Depending on the interpretation to be given to Article 13(1) and (3) of the directive, do those provisions, in so far as they apply to names and trade marks, comply with the right to property, freedom of expression, the freedom to conduct a business and the principles of proportionality and legal certainty?

               3.

               If the preceding question is answered in the affirmative, under what conditions can a Member State, without infringing the right to property, freedom of expression, the freedom to conduct a business and the principle of proportionality, avail itself of the option open to it under Article 24(2) of the directive in order to require manufacturers and importers to have plain, standardised unit packets and outside packaging?

      (1)  Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).


title: Case T-30/06: Action brought on  24 January 2006  — Procter & Gamble v OHIM

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/34

         Action brought on 24 January 2006 — Procter & Gamble v OHIM
   (Case T-30/06)
   (2006/C 86/69)
   Language of the case: English
   Parties

      Applicant: The Procter & Gamble Company (Cincinnati, USA) [represented by: G. Kuipers, lawyer]

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the OHIM of 21 November 2005 (Case R 1072/2004-1), which was notified to P&G by letter of 5 December 2005, in so far as it finds that the mark does not satisfy the conditions as laid down in Article 7(1)(b) of Regulation No 40/94; and

               —

               order the OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Three dimensional mark in form of a square white tablet showing a blue four petalled floral design for goods in class 3 (washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps) — application No 1 683 408

      Decision of the examiner: Refusal of the application
   Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94.


title: Case C-448/08: Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Anders Gerdin v Åklagaren

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/18

         Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Anders Gerdin v Åklagaren
   (Case C-448/08)
   (2008/C 327/29)
   Language of the case: Swedish
   Referring court
   Svea hovrätt
   Parties to the main proceedings

      Applicant: Anders Gerdin

      Defendant: Åklagaren
   Questions referred

               1.

               May discrimination on grounds of nationality be accepted, under some circumstances, on national gaming and lottery markets on the basis of overriding reasons in the general interest?

               2.

               If there are a number of objectives pursued by the restrictive policy adopted on a national gaming and lottery market and one of them is the financing of social activities, can the latter then be said to be an incidental beneficial consequence of the restrictive policy? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the objective of financing social activities cannot be said to be the principal objective of the restrictive policy?

               3.

               Can the State rely on overriding reasons in the general interest as justification for a restrictive gaming policy if State-controlled companies market gaming and lotteries, the revenue from which accrues to the State, and one of several objectives of that marketing is the financing of social activities? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the financing of social activities is not found to be the principal objective of the marketing?

               4.

               Can a total prohibition on the marketing of gaming and lotteries organised in another Member State by a gaming company established there and supervised by that Member State's authorities be proportionate to the objective of controlling and supervising gaming activity, when at the same time there are no restrictions on the marketing of gaming and lotteries organised by gaming companies established in the Member State which pursues the restrictive policy? What is the answer to the question if the objective of such an arrangement is to limit gaming?

               5.

               Is a gaming operator who has been granted a licence to operate certain gaming activities in a State and is supervised by the competent authority in that State entitled to market its gaming products in other Member States through, for example, advertisements in newspapers, without first applying for a licence from those States' competent authorities? If this question is answered in the affirmative, does this mean that a Member State's rules which are based on the imposition of criminal penalties on the promotion of participation in lotteries organised abroad constitute an obstacle to the freedom of establishment and the freedom to provide services which can never be accepted on the basis of overriding reasons in the general interest? Is it of any significance for the answer to the first question whether the Member State where the gaming operator is established invokes the same overriding reasons in the general interest as the State where the operator wishes to market its gaming activities?


title: Case C-496/15: Request for a preliminary ruling from the Landessozialgericht Rheinland-Pfalz, Mainz (Germany) lodged on 22 September 2015 — Alphonse Eschenbrenner v Bundesagentur für Arbeit

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/8

         Request for a preliminary ruling from the Landessozialgericht Rheinland-Pfalz, Mainz (Germany) lodged on 22 September 2015 — Alphonse Eschenbrenner v Bundesagentur für Arbeit
   (Case C-496/15)
   (2015/C 429/12)
   Language of the case: German

      Referring court

   Landessozialgericht Rheinland-Pfalz, Mainz

      Parties to the main proceedings

      Applicant: Alphonse Eschenbrenner

      Defendant: Bundesagentur für Arbeit

      Questions referred

               1.

               Is it compatible with the rules of primary and/or secondary EU law (in particular Article 45 TFEU (formerly Article 39 EC) and Article 7 of Regulation (EU) No 492/2011 (1)), in the case of an employee who pursues an occupational activity in Germany, who is resident in another Member State and not subject to income tax liability in Germany, and for whom insolvency benefit, under the provisions applicable to him, is not taxable, that, in the event of his employer’s insolvency, the remuneration from employment used to calculate his insolvency benefit is subject to the notional taxation that would be charged as a deduction on his remuneration from employment were he subject to income tax liability in Germany, if he no longer has the possibility of asserting a claim against his employer for his residual gross remuneration?

               2.

               If Question 1 is answered in the negative, can it be considered compatible with the rules of primary and/or secondary EU law if, in the circumstances described, the employee retains the possibility of asserting a claim against his employer for his residual gross remuneration?

      (1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union Text with EEA relevance, OJ 2011 L 141, p. 1.


title: Case T-399/05: Action brought on  21 October 2005  — Wils v European Parliament

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/28

         Action brought on 21 October 2005 — Wils v European Parliament
   (Case T-399/05)
   (2006/C 10/56)
   Language of the case: French
   Parties

      Applicant: Dieter Wils (Altrier, Luxembourg) (represented by: G. Vandersanden and C. Ronzi, lawyers)

      Defendant: European Parliament
   Form of order sought
   The applicant claims that the Court should:

               —

               Annul the applicant's salary slip for January 2005 with retroactive effect from 1 July 2004, insofar as it increases the rate of contribution to the pension scheme to 9.75 %, and order repayment to the applicant of the percentage of the contribution corresponding to the increase in rate. Accordingly — in the earlier salary slips — restore the rate of contribution to the level set before 1 July 2004;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, an official of the Parliament, challenges the increase in the rate of contribution to the pension scheme to 9,75 %, introduced by Annex XIII to the Staff Regulations, which came into force on 1 May 2004. In support of his claims, he alleges the illegality of that annex, in the light of Article 83(4) of the Staff Regulations, in the version applicable prior to 1 May 2004. The effect of that latter provision was to allow the contribution at issue to be altered for the sole purpose of ensuring actuarial balance. However, the applicant submits that the increase in question was decided upon for other reasons, namely, to cover a pre-existing deficit in the Community pension scheme.
   Furthermore, the applicant claims that the criteria used by Eurostat to calculate the actuarial balance are based on parameters which have led to miscalculations. He also pleads a breach of the principle of proportionality, in that the increase in question goes beyond what is strictly necessary to restore actuarial balance. Lastly, the applicant alleges infringement of his legitimate expectations, since the Parliament clearly let it be understood that it would not allow the rate of contribution to be altered otherwise than in strict compliance with the actuarial balance.


title: Case C-305/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 30 May 2016 — Avon Cosmetics Ltd v The Commissioners for Her Majesty's Revenue and Customs

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/34

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 30 May 2016 — Avon Cosmetics Ltd v The Commissioners for Her Majesty's Revenue and Customs
   (Case C-305/16)
   (2016/C 270/38)
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Avon Cosmetics Ltd

      Defendant: The Commissioners for Her Majesty's Commissioners of Revenue and Customs

      Questions referred

               1.

               Where a direct seller sells goods (‘Sales Aids’) to unregistered resellers or the unregistered reseller purchases goods and services from third parties (‘Third Party Goods and Services’) which are in both cases used by the unregistered resellers to assist their economic activity of selling other goods which are also purchased from the direct seller and the subject of administrative arrangements issued pursuant to a derogation most recently authorised by Council Decision of 24 May 1989 (89/534/EEC (1)) (the ‘Derogation’), do the relevant authorisations, implementing legislation and/or administrative arrangements offend any relevant provisions and/or principles of European Union law in so far as they require the direct seller to account for output tax on the unregistered resellers' sale price of the other goods with no reduction for the VAT incurred by the unregistered reseller on such Sales Aids and/or Third Party Goods and Services?

               2.

               Whether the UK was under any obligation to inform the Commission when seeking authorisation from the Council for the Derogation, that unregistered resellers incurred VAT on purchases of Sales Aids and/or Third Party Goods and Services used for the purposes of their economic activities and that, accordingly, an adjustment to reflect that irrecoverable input tax, or overpaid output tax, should be accommodated in the derogation?

               3.

               In the event that the answer to questions 1and/or 2 above is in the affirmative:

                           a.

                           Whether any of the relevant authorisations, implementing legislation or administrative arrangements can and should be interpreted so as to make an allowance in respect of either (i) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (ii) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses.

                           b.

                           Whether:

                                       i.

                                       The authorisation of the UK's derogation from Article 11A(1)(a) of the Sixth Directive was unlawful.

                                       ii.

                                       a derogation from Article 17 of the Sixth Directive is necessary alongside the derogation from Article 11A(1)(a). If so, whether the UK acted unlawfully by failing to ask the Commission or the Council to authorise it to derogate from Article 17.

                                       iii.

                                       the UK are acting unlawfully by failing to administer VAT in such a way as to allow direct sellers to claim a credit for either Sales Aids or Third Party Goods and Services VAT incurred by unregistered resellers for the purposes of their economic activities.

                                       iv.

                                       all or any part of the relevant authorisations, implementing legislation or administrative arrangements are therefore invalid and/or unlawful.

                           c.

                           Whether the appropriate remedy is, from the Court of Justice of the European Union or from the national Tribunal or Court:

                                       i.

                                       a direction that the Member State is required to give effect to the Derogation in domestic law by providing for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses; or

                                       ii.

                                       a declaration that the authorisation of the Derogation, and by extension the derogation itself, is invalid; or

                                       iii.

                                       a declaration that the domestic legislation is invalid; or

                                       iv.

                                       a declaration that the Notice of Direction is invalid; or

                                       v.

                                       a declaration that the UK is obliged to apply for authorisation for a further derogation so to provide for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses.

               4.

               Under Article 27 of the Sixth Directive (Article 395 of the Principal VAT Directive), is the ‘tax eva[ded] or avoid[ed]’ to be measured as the net loss of tax (taking account of both the output tax paid and input tax recoverable in the structure giving rise to the tax evaded or avoided) to the Member State or the gross loss of tax (taking account of only the output tax in the structure giving rise to the tax evaded or avoided) to the Member State?

      (1)  Council Decision of 24 May 1989 authorizing the United Kingdom to apply, in respect of certain supplies to unregistered resellers, a measure derogating from article 11 A (1) (a) of the Sixth Directive 77/388/EEC on the harmonization of the laws of the Member States relating to turnover taxes.

      OJ L 280, p. 54


title: Appeal brought on 26 February 1998 by Associación Telefónica de Mutualistas (ATM) against the judgment delivered on 18 December 1997 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-178/94 between Associación Telefónica de Mutualistas (ATM) and Commission of the European Communities (Case C-57/98 P)

text:
C 137/10             EN                Official Journal of the European Communities                                      2.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                   provision of services (2) to be interpreted as in any
   interpreted as infringed by a provision of national law,            event, having regard to the correct interpretation of
   the first sentence of paragraph 1(3) of the Arbeitneh-              Articles 48, 59 and 60 of the EC Treaty, neither
   merentsendegesetz (Law on the Posting of Workers),                  requiring nor permitting the rules at issue in
   which extends the application of provisions of                      questions 1, 2 and 3?
   collective agreements which have been declared
   generally binding concerning the collection of                 (1) OJ L 307, 13.12.1993, p. 18.
   contributions and the grant of benefits in connection          (2) OJ L 18, 21.1.1997, p. 1.
   with workers' holiday entitlements by joint bodies of
   parties to collective agreements, and thus the
   provisions of those agreements concerning the scheme
   to be complied with in that regard, to employers
   resident abroad and their workers who have been
   posted to the area within which those collective               Reference for a preliminary ruling by the Hùjesteret by
   agreements apply?                                              order of 18 February 1998 in the case of Skatteministeriet
                                                                                v. Bent Vestergaard
2. Are Articles 48, 59 and 60 of the EC Treaty to be                                       (Case C-55/98)
   interpreted as infringed by the second sentence of                                       (98/C 137/20)
   paragraph 1(1) and the first sentence of paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements             Reference has been made to the Court of Justice of the
   declared to be generally binding which:                        European Communities by order of 18 February 1998
                                                                  from the Hùjesteret (Danish Supreme Court), which was
   (a) provide for a length of leave which exceeds the            received at the Court Registry on 24 February 1998, for a
       minimum length of annual leave laid down in                preliminary ruling in the case of Skatteministeriet
       Council Directive 93/104/EC of 23 November                 (Ministry of Fiscal Affairs) v. Bent Vestergaard on the
       1993 (1) concerning certain aspects of the                 following questions.
       organisation of working time, and/or
                                                                  1. Is it in accordance with Articles 6 and 59 of the EC
   (b) allow employers resident in Germany to claim the                Treaty for Danish case-law (see the judgment of the
       reimbursement of expenditure on holiday pay and                 Hùjesteret of 19 October 1994, reproduced in
       holiday allowances from joint bodies of the parties             Ugeskrift for Retsvñsen 1994, p. 970) to apply a
       to the collective agreements whereas, in the case of            presumption that, in cases in which a course is held in
       employers resident abroad, they do not provide for              an ordinary tourist resort outside Denmark and the
       such a claim but instead for a direct claim by the              course location cannot, as such, be justified on
       posted workers against the joint bodies of the                  professional grounds, the course involves such a
       parties to the collective agreements, and/or                    significant tourism element that the costs of the course
                                                                       cannot be treated as constituting deductible operating
   (c) in connection with the social fund scheme to be                 costs?
       complied with under those collective agreements,
       impose on employers resident abroad obligations            2. If the answer is no: can the national legal position in
       to provide information to the joint bodies of the               the area of taxation be justified by reference to the
       parties to the collective agreements whereby the                case-law of the Court of Justice, in particular Case
       amount of information to be given exceeds the                   C-204/90 Bachmann v. Belgium (1) and Case C-250/95
       amount required from employers resident in                      Futura Participations and Singer v. Administration des
       Germany?                                                        Contributions (2)?
3. Are Articles 48, 59 and 60 of the EC Treaty to be              (1) Judgment of 28.1.1992, [1992] ECR I-249
   interpreted as infringed by paragraph 1(4) of the              (2) Judgment of 15.5.1997, [1997] ECR I-2471.
   Arbeitnehmerentsendegesetz under which, for the
   purposes of classifying businesses as covered by a
   collective agreement which has been declared generally
   binding and which, under the first sentence of
   paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                Appeal brought on 26 February 1998 by Associación
   posted to the area within which that collective                Telefónica de Mutualistas (ATM) against the judgment
   agreement applies, all workers posted to Germany, but          delivered on 18 December 1997 by the First Chamber,
   only those workers, are treated as a business, while a         Extended Composition, of the Court of First Instance of
   different definition of a business applies to employers        the European Communities in Case T-178/94 between
   resident in Germany which in certain cases results in          Associación Telefónica de Mutualistas (ATM) and
   different businesses falling within the field of                        Commission of the European Communities
   application of the generally binding collective                                       (Case C-57/98 P)
   agreement?
                                                                                (98/C 137/21)
4. Is Article 3(1)(b) of European Parliament and Council
   Directive 96/71/EC of 16 December 1996 concerning              An appeal against the judgment delivered on 18 December
   the posting of workers in the framework of the                 1997 by the First Chamber, Extended Composition, of the
 ---pagebreak--- 2.5.98               EN                 Official Journal of the European Communities                                   C 137/11
Court of First Instance of the European Communities in             Reference for a preliminary ruling by the Amtsgericht,
Case T-178/94 between Associación Telefónica de                    Heinsberg, by decision of that court of 13 February 1998
Mutualistas and the Commission of the European                     in the proceedings for an administrative fine against Josef
Communities was brought before the Court of Justice of                                         Corsten
the European Communities on 26 February 1998 by
                                                                                (Case C-58/98)
Associación Telefónica de Mutualistas (ATM), represented
by Juan Eugenio Blanco Rodríguez and Bernardo Vicente                                       (98/C 137/22)
HernaÂndez Bataller, of the Madrid Bar, with an address
for service in Luxembourg at the Chambers of Loesch &
Wolter, 11, rue Goethe.
                                                                   Reference has been made to the Court of Justice of the
The appellant claims that the Court should:                        European Communities by decision of the Amtsgericht
                                                                   (Local Court), Heinsberg, of 13 February 1998, received
                                                                   at the Court Registry on 27 February 1998, for a
1. quash the judgment of the Court of First Instance (1);
                                                                   preliminary ruling in the proceedings for an administrative
                                                                   fine against Josef Corsten on the following question:
2. uphold in their entirety the claims put forward at first
    instance.
                                                                   Is it compatible with Community law on the freedom to
Pleas in law and main arguments adduced in support:
                                                                   provide services for a Netherlands undertaking, which in
                                                                   the Netherlands satisfies all the conditions for carrying on
Ð lack of jurisdiction of the Court of First Instance on
                                                                   a commercial activity, to have to satisfy further, albeit
    the ground of exceeding the bounds of its jurisdiction:
                                                                   purely formal, conditions (in this case entry in the register
    the contested judgment makes a number of statements
                                                                   of manual trades) in order to carry on that activity in
    concerning Spanish law which, in the view of the
                                                                   Germany?
    appellants, are neither lawful or referred to in the
    pleadings, nor is it open to the Court of First Instance
    to give such reasons for judgment,
Ð irregularities in the procedure before the Court of First
    Instance which are to the detriment of the appellant's
    interests (inadequate statement of reasons),
                                                                   Reference for a preliminary ruling by the Tribunale
Ð breach of Community law by the Court of First                    Ordinario, Milan, by order of that court of 12 February
    Instance in that it misinterpreted the fourth paragraph        1998 in the case of Butterfly Music Srl against Carosello
    of Article 173 of the EC Treaty: ATM does have an              Edizioni Musicali e Discografiche Cemed Srl and FIMI,
    interest in bringing proceedings inasmuch as the                           Federazione Industria Musicale Italiana
    categorisation of the financial assistance provided by                                 (Case C-60/98)
    the Kingdom of Spain in favour of CompanÄia
    Telefónica de EspanÄa SA (TESA) as State aid                                            (98/C 137/23)
    incompatible with the common market, and any order
    to repay it, undoubtedly benefits ATM, as an entity
    acting on behalf of its members, since the reduced             Reference has been made to the Court of Justice of the
    social charges would have to be reimbursed in                  European Communities by an order of the Tribunale
    accordance with Spanish law, that is to say, first by          Ordinario, Milan, of 12 February 1998, which was
    TESA to the Spanish public authorities, in order for           received at the Court Registry on 2 March 1998, for a
    the latter to pay the Institución Telefónica de                preliminary ruling in the case of Butterfly Music Srl
    Previsión, and finally to benefit those of ATM's               against Carosello Edizioni Musicali e Discografiche
    members on whose behalf ATM acted,                             Cemed Srl and FIMI, Federazione Industria Musicale
                                                                   Italiana, on the following question.
Ð breach of Community law by the Court of First
    Instance, inasmuch as the interpretation was erroneous
    and the judgment was inconsistent with the applicant's
                                                                   Whether the interpretation of Article 10 of Council
    submissions concerning the possible infringement of
                                                                   Directive 93/98/EEC of 29 October 1993 harmonising the
    Article 92 of the EC Treaty: in order to ascertain
                                                                   term of protection of copyright and certain related
    whether or not trade had been affected, there should
                                                                   rights (1), in particular where it provides for the adoption
    first have been a finding as to whether or not aid had
                                                                   of the necessary provisions to protect in particular
    been granted contrary to Article 92 of the EC Treaty
                                                                   acquired rights of third parties', is compatible with
    before deciding that the appellant did not have an
                                                                   Article 17(4) of Law No 52 of 6 February 1996, as
    interest in bringing proceedings, which the appellant
                                                                   amended by Law No 650 of 23 December 1996.
    considers to be an inconsistency in the contested
    judgment.
                                                                   (1) OJ L 290, 24.11.1993, p. 9.
( ) OJ C 55, 20.2.1998, p. 25.
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