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C 294/30 EN Official Journal of the European Union 2.12.

2006

3. If Question 1 is answered in the affirmative, has an air Pleas in law and main arguments
carrier then taken all reasonable measures to avoid cancella-
tion for the purposes of the Regulation if it can be estab-
lished that there were no aircraft available for use for the The requirement in the Netherlands rules that in order to
flight in respect of which an aircraft which was taken out of obtain a residence permit a person must have sufficient means
operation due to technical problems was scheduled to be for a minimum period of one year is not in conformity with
used? Community law.

4. If Question 1 is answered in the affirmative, is it relevant


that the documentation concerning the technical problems (1) OJ 1990 L 180, p. 26.
relied on by the air carrier originates solely from the air (2) OJ 1990 L 180, p. 28.
carrier itself? (3) OJ, English Special Edition 1968(II), p. 485.

Action brought on 25 September 2006 — Commission of Appeal brought on 25 September 2006 by Faraj Hassan
the European Communities v Kingdom of the Netherlands against the judgment of the Court of First Instance
(Second Chamber) delivered on 12 July 2006 in Case T-
49/04: Faraj Hassan v Council of the European Union and
(Case C-398/06) Commission of the European Communities

(Case C-399/06 P)
(2006/C 294/53)

(2006/C 294/54)
Language of the case: Dutch
Language of the case: English

Parties Parties

Applicant: Commission of the European Communities (repre- Appellant: Faraj Hassan (represented by: E. Grieves, Barrister, H.
sented by: M. Condou-Durande and R. Troosters, Agents) Miller, Solicitor)

Other parties to the proceedings: Council of the European Union,


Defendant: Kingdom of the Netherlands Commission of the European Communities

Form of order sought


Form of order sought

The applicant claims that the Court should:


— Declare that, by maintaining in force national provisions
under which economically non-active and pensioned EU/ 1) Set aside the judgment of the Court of First Instance
EEA nationals must prove that they have lasting means of
support in order to obtain a residence permit, the Kingdom 2) Annul Council Regulation (EC) No 881/2002 of 27 May
of the Netherlands has failed to fulfil its obligations under 2002 (1) as amended by Commission Regulation (EC) No
Council Directive 90/364/EEC (1) of 28 June 1990 on the 2049/2003 20 November 2003 (2) and/or Commission
right of residence, Council Directive 90/365/EEC (2) of 28 Regulation (EC) No 2049/2003 20 November 2003 in its
June 1990 on the right of residence for employees and self- entirety and/or in respect of the proscription of the Appli-
employed persons who have ceased their occupational cant; and
activity and Council Directive 68/360/EEC (3) of 15 October
1968 on the abolition of restrictions on movement and 3) Alternatively declare the aforementioned Regulations inap-
residence within the Community for workers of Member plicable in respect of its application to the applicant; and
States and their families;
4) Take such further action as the Court may deem appro-
— order the Kingdom of the Netherlands to pay the costs. priate; and
2.12.2006 EN Official Journal of the European Union C 294/31

5) Order the Council to pay the costs incurred by the applicant Action brought on 26 September 2006 — Commission of
in the present proceedings; the European Communities v Bundesrepublik Deutschland

(Case C-401/06)
6) Order the Council to pay damages.

(2006/C 294/55)

Language of the case: German

Pleas in law and main arguments

Parties
The appellant maintains that the Council and Commission are
obliged to respect the rights protected by the European Applicant: Commission of the European Communities (repre-
Convention on Human Rights (‘the Convention’) and cannot sented by: D. Triantafyllou, acting as Agent)
abrogate that obligation, unless ‘at least equivalent protection’
is offered as a result of that abrogation.
Defendant: Bundesrepublik Deutschland

It is further maintained that the protections offered by the


operation of the United Nations Security Council (‘UNSC’) are Form of order sought
not equivalent to that offered by the Convention.

— declare that, by failing to determine the place where the


The appellant submits that the Court of First Instance erred in service is supplied in respect of the activity of an executor
law when it: in accordance with Article 9(2)(e) of the Sixth VAT Direc-
tive when the service is performed for customers estab-
lished outside the Community or for taxable persons estab-
lished in the Community but not in the same country as
i) failed to directly assess whether the UNSC offered equivalent the supplier, the Bundesrepublik Deutschland has failed to
protection to that of the Convention, specifically in relation fulfil its obligations under Article 9(2)(e) of Sixth Council
to Articles 6, 8, 13 and Article 1 of Protocol 1 of the Directive 77/388/EEC of 17 May 1977 on turnover
Convention; and taxes (1);

— order the Bundesrepublik Deutschland to pay the costs.


ii) scrutinized the operation of the UNSC indirectly by virtue
of the principle of jus cogens rather than by virtue of and by
reference to the protection offered by Articles 6, 8, 13 and
Article 1 of Protocol 1 of the Convention. Pleas in law and main arguments

Under the third indent of Article 9(2)(e) of the Sixth VAT


It is further submitted that the Court of First Instance erred Directive the place of supply of certain services which are
when it found that the restriction on the usage of property was performed for customers established outside the Community or
not a relevant one as to the substance of the right to property. for taxable persons established in the Community but not in
the same country as the supplier is the place where the
customer has established his business or has a fixed establish-
ment to which the service is supplied or, in the absence of
(1) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing
certain specific restrictive measures directed against certain persons such a place, the place where he has his permanent address or
and entities associated with Usama bin Laden, the Al-Qaida network usually resides. Those services are the services of consultants,
and the Taliban, and repealing Council Regulation (EC) No engineers, consultancy bureaux, lawyers, accountants and other
467/2001 prohibiting the export of certain goods and services to similar services. That provision of the directive is a rule of
Afghanistan, strengthening the flight ban and extending the freeze
of funds and other financial resources in respect of the Taliban of conflict which determines the place of taxation of the services
Afghanistan. (OJ L 139, p. 9) and the jurisdiction of the Member States.
(2) Commission Regulation (EC) No 2049/2003 of 20 November 2003
amending for the 25th time Council Regulation (EC) No 881/2002
imposing certain specific restrictive measures directed against Under the provisions of German law and the administrative
certain persons and entities associated with Usama bin Laden, the practice of the tax authorities based thereon, the place where
Al-Qaida network and the Taliban, and repealing Council Regu- the services of an executor are supplied is the place from
lation (EC) No 467/2001. (OJ L 303, p. 20)
which the operator provides its services. The place of supply in
respect of those services is therefore not determined under
Article 9(2)(e) of the directive when they are performed for
customers established outside the Community or for taxable
persons established in the Community but not in the same
country as the supplier.