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C 118/20 EN Official Journal of the European Union 30.4.

2004

JUDGMENT OF THE COURT JUDGMENT OF THE COURT

(Fifth Chamber) (Fifth Chamber)

of 29 April 2004 of 29 April 2004

in Case C-117/02: Commission of the European Commu- in Case C-137/02 (reference for a preliminary ruling from
nities v Portuguese Republic (1) the Bundesfinanzhof): Finanzamt Offenbach am Main-Land
v Faxworld Vorgründungsgesellschaft Peter Hünning-
hausen und Wolfgang Klein GbR (1)
(Failure of a Member State to fulfil obligations — Directive
85/337/EEC — Assessment of the effects of certain projects
(Reference for a preliminary ruling — Interpretation of the
on the environment — Construction of holiday villages and
Sixth VAT Directive — Right of a Vorgründungsgesellschaft
hotel complexes — Failure to make a project to construct a
(civil-law partnership the object of which is to prepare the
hotel complex subject to such an assessment)
means necessary for the activities of a capital company yet to
be formed) to deduct input VAT — Transfer for considera-
tion of the totality of those means upon formation of the
(2004/C 118/34) capital company — Transfer not subject to VAT in conse-
quence of the exercise by the Member State concerned of the
option provided for in Article 5(8) of the Sixth VAT
(Language of the case: Portuguese) Directive)

(2004/C 118/35)

(Provisional translation; the definitive translation will be published in (Language of the case: German)
the European Court Reports)

(Provisional translation; the definitive translation will be published in


In Case C-117/02: Commission of the European Communities the European Court Reports)
(Agent: A. Caeiros), with an address for service in Luxembourg,
v Portuguese Republic (Agents: L. Fernandes, M. Telles Romão
and J. Lois) acting as Agents, with an address for service in
Luxembourg — application for a declaration that, by allowing
consent to be given to a planned tourism complex including
residential units, hotels and golf courses, located in the area of In Case C-137/02: reference to the Court under Article 234 EC
Ponta do Abano, without an assessment of the effects of that from the Bundesfinanzhof (Germany) for a preliminary ruling
project on the environment, the Portuguese Republic has failed in the proceedings pending before that court between Finan-
to fulfil its obligations under Article 2(1) of Council Directive zamt Offenbach am Main-Land and Faxworld Vorgründungsge-
85/337/EEC of 27 June 1985 on the assessment of the effects sellschaft Peter Hünninghausen und Wolfgang Klein GbR — on
of certain public and private projects on the environment (OJ the interpretation of Article 17(2) of Sixth Council Directive
1985 L 175, p. 40) — the Court (Fifth Chamber), composed of: 77/388/EEC of 17 May 1977 on the harmonisation of the laws
A. Rosas (Rapporteur), acting for the President of the Fifth of the Member States relating to turnover taxes — Common
Chamber, A. La Pergola and S. von Bahr, Judges; A. Tizzano, system of value added tax: uniform basis of assessment (OJ
Advocate General; R. Grass, Registrar, has given a judgment on 1977 L 145, p. 1), as amended by Council Directive 95/7/EC
29 April 2004, in which it: of 10 April 1995 (OJ 1995 L 102, p. 18) — the Court (Fifth
Chamber), composed of: P. Jann, acting for the President of the
Fifth Chamber, A. Rosas and S. von Bahr (Rapporteur), Judges;
F.G. Jacobs, Advocate General; M.-F. Contet, Principal Adminis-
1. Dismisses the application; trator, for the Registrar, has given a judgment on 29 April
2004, in which it has ruled:

2. Orders the Commission of the European Communities to pay the


costs. A partnership established for the sole purpose of founding a capital
company is entitled to deduct the input tax paid on supplies of goods
and services where its only output transaction in the performance of
(1) OJ C 156, 29.6.2002. its object was to effect by formal act the transfer for consideration of
the supplies obtained to that company once founded and where,
because the Member State concerned has exercised the options
30.4.2004 EN Official Journal of the European Union C 118/21

provided for in Articles 5(8) and 6(5) of Sixth Council Directive ment which, under the criteria determined by the Member State in
77/388/EEC of 17 May 1977 on the harmonisation of the laws of question, may be considered to serve as an invoice.
the Member States relating to turnover taxes – Common system of
value added tax: uniform basis of assessment, as amended by Council
Directive 95/7/EC of 10 April 1995, a transfer of a totality of (1) OJ C 156, 29.6.2002.
assets is not deemed to be a supply of goods or services.

(1) OJ C 169, 13.7.2002.


JUDGMENT OF THE COURT

(Full Chamber)
JUDGMENT OF THE COURT

(Fifth Chamber) of 27 April 2004

of 29 April 2004 in Case C-159/02 (reference for a preliminary ruling from


the House of Lords): Gregory Paul Turner v
in Case C-152/02 (reference for a preliminary ruling from Felix Fareed Ismail Grovit, Harada Ltd and Changepoint
the Bundesfinanzhof): Terra Baubedarf-Handel GmbH v SA (1)
Finanzamt Osterholz-Scharmbeck (1)

(Brussels Convention — Proceedings brought in a


(Sixth VAT Directive — Article 17(1) and Article 18(1) and Contracting State — Proceedings brought in another
(2) — Right to deduct input VAT — Conditions of exercise) Contracting State by the defendant in the existing proceed-
ings — Defendant acting in bad faith in order to frustrate
the existing proceedings — Compatibility with the Brussels
(2004/C 118/36) Convention of the grant of an injunction preventing the
defendant from continuing the action in another Member
(Language of the case: German) State)

(2004/C 118/37)
(Provisional translation; the definitive translation will be published in
the European Court Reports)
(Language of the case: English)

In Case C-152/02: reference to the Court under Article 234 EC


from the Bundesfinanzhof (Federal Finance Court) (Germany)
for a preliminary ruling in the proceedings pending before that In Case C-159/02: reference to the Court under the Protocol of
court between Terra Baubedarf-Handel GmbH and Finanzamt 3 June 1971 on the interpretation by the Court of Justice of
Osterholz-Scharmbeck — on the interpretation of Articles 17 the Convention of 27 September 1968 on Jurisdiction and the
and 18 of Sixth Council Directive 77/388/EEC of 17 May 1977 Enforcement of Judgments in Civil and Commercial Matters by
on the harmonisation of the laws of the Member States relating the House of Lords (United Kingdom) for a preliminary ruling
to turnover taxes — Common system of value added tax: in the proceedings pending before that court between Gregory
uniform basis of assessment (OJ 1977 L 145, p. 1) — the Paul Turner and Felix Fareed Ismail Grovit, Harada Ltd and
Court (Fifth Chamber), composed of: P. Jann, acting for the Changepoint SA — on the interpretation of the abovemen-
President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, tioned Convention of 27 September 1968 (OJ 1972 L 299, p.
A. La Pergola and S. von Bahr (Rapporteur), Judges; C. Stix- 32), as amended by the Convention of 9 October 1978 on the
Hackl, Advocate General; M. Múgica Arzamendi, Principal Accession of the Kingdom of Denmark, Ireland and the United
Administrator, for the Registrar, has given a judgment on 29 Kingdom of Great Britain and Northern Ireland (OJ 1978 L
April 2004, in which it has ruled: 304, p. 1, and – amended version – p. 77), by the Convention
of 25 October 1982 on the Accession of the Hellenic Republic
(OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989
For the deduction referred to in Article 17(2)(a) of Sixth Council on the Accession of the Kingdom of Spain and the Portuguese
Directive 77/388/EEC of 17 May 1977 on the harmonisation of Republic (OJ 1989 L 285, p. 1) — the Court, composed of: V.
the laws of the Member States relating to turnover taxes – Common Skouris, President, P. Jann (Rapporteur), C.W.A. Timmermans,
system of value added tax: uniform basis of assessment, the first sub- C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, Presidents of
paragraph of Article 18(2) of that directive must be interpreted as Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen,
meaning that the right to deduct must be exercised in respect of the N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer,
tax period in which the two conditions required by that provision are Advocate General; L. Hewlett, Principal Administrator, for the
satisfied, namely that the goods have been delivered or the services Registrar, has given a judgment on 27 April 2004, in which it
performed and that the taxable person holds the invoice or the docu- has ruled: