# C_2005155EN.01000601.xml

| 25.6.2005 | EN | Official Journal of the European Union | C 155/6 |
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25.6.2005

EN

Official Journal of the European Union

C 155/6

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Action brought on 18 April 2005 by the Commission of the European Communities against the Italian Republic

(Case C-173/05)

(2005/C 155/11)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 18 April 2005 by the Commission of the European Communities, represented by E. Traversa and J. Hottiaux, of its Legal Service.

The applicant claims that the Court should:

| 1. | declare that, by enacting and maintaining in force the ‘environmental protection tax’ on gas pipelines laid down by Article 6 of Sicilian Regional Law No 2 of 26 March 2002 (published in GURS (Official Journal of the Sicilian Region) Part I No 14 of 2002), the Italian Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC, 26 EC and 133 EC and Articles 4 and 9 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria signed on 26 April 1976 and approved by Council Regulation (EEC) No 2210/78 of 26 September 1978 (1); |
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1.

declare that, by enacting and maintaining in force the ‘environmental protection tax’ on gas pipelines laid down by Article 6 of Sicilian Regional Law No 2 of 26 March 2002 (published in GURS (Official Journal of the Sicilian Region) Part I No 14 of 2002), the Italian Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC, 26 EC and 133 EC and Articles 4 and 9 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria signed on 26 April 1976 and approved by Council Regulation (EEC) No 2210/78 of 26 September 1978 (1);

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| 2. | order the Italian Republic to pay the costs. |
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2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 6 of the Sicilian Regional Law in question infringes the principles of the Common Customs Tariff in so far as it establishes a tax having equivalent effect to an import duty (into the Community) or export duty (to other Member States) prohibited under the provisions of the Treaty and Community secondary law referred to above.

From a formal point of view and according to the wording of the contested legislation, the taxable event is the ownership of the plant whereas the taxable amount is based on the volume, in cubic metres, of the pipelines. However, the Sicilian legislature took care to specify, first, in Article 6(3), that the taxable event is the ownership of the gas pipelines ‘containing the gas’; second, Article 6(4) provides that the taxable persons are the pipeline owners ‘which carry out at least one of the activities (transport, sales, purchasing)’ relating to gas. The Commission infers from this that the real objective of the Sicilian legislation is to tax the product transported (methane) and not the infrastructure (gas pipeline) as such.

containing the gas

which carry out at least one of the activities (transport, sales, purchasing)

According to the Court's case-law on internal taxation within the meaning of Article 90 EC, a tax charged on the method of transport according to the weight of the goods transported falls within the scope of the Community provisions on taxation of goods, since such a tax inevitably and immediately adds to the cost of the good transported, whether national or imported. It follows from the principle of interpretation set out in that case-law, which is readily applicable to taxes having equivalent effect to customs duty, that in the present case, the national tax, even if formally chargeable on the means of transport (gas pipelines) according to the volume of the good (methane) transported, in fact applies to the good itself and is inevitably and directly added to its cost.

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(1)  OJ 1978 L 263 of 27.9.1978.

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