EN Official Journal of the European Union CE 84/368

(2004/C 84 E/0426)

WRITTEN QUESTION E-0346/04

by Eluned Morgan (PSE) to the Commission

(10 February 2004)

Subject: Differential pricing

Is it true that the ECJ, in a case brought by the Commission against the Italian Government, ruled that it is unlawful to use differential pricing to subsidise access of local resident pensioners to public facilities? Can you please give a detailed account of this case?

Does this ruling mean that national and regional governments are prohibited from offering free public services, such as transport, to resident pensioners, unless these services are provided to all EU pensioners?

Could you clarify how this ruling affects the autonomy of Member States in deciding how they spend their citizens' nationally and regionally paid taxes?

Answer given by Mr Bolkestein on behalf of the Commission

(23 March 2004)

As indicated in its answer to Written Question 4044/03 from Ms. Theresa Villiers (1), the Commission reiterates that in its judgement of 16 January 2003 in Case C-388/01 concerning admission to museums in Italy, the Court of Justice explicitly ruled that, like those based on nationality, preferential rates granted on the basis of the place of residence — even local — of visitors to cultural sites were discriminatory and hence incompatible with the EC Treaty, and in particular the principle of free movement of services.

The Case concerned discriminatory, advantageous rates for admission to museums and other monuments and public sites granted only to Italian nationals or persons resident within the territory of the authorities running the cultural sites in question who were aged over 60 or 65 years, excluding from such benefits tourists who were nationals of other Member States and non-residents who fulfilled the same objective age requirements.

According to established case law, a distinction drawn on the basis of residence is liable to operate mainly to the detriment of nationals of other Member States, since the majority of non-residents are foreigners. In particular, it is immaterial whether the contested measure may affect nationals of the State in question resident in other parts of the national territory as well as nationals of other Member States.

A distinction based on local residence could, in any case, only be justified by purely economic reasons and could be acceptable only if it respected the principles of necessity and proportionality. In response to the question asked by the Honourable Member, for example, such a distinction could only be justified if there was a direct link between some form of taxation within the territory of the local authority on the one hand and the application of preferential rates for admission to a service provided by such an authority (with a view to ensuring fiscal consistency) on the other.

In accordance with the established case law of the Court of Justice, if measures of indirect taxation fall under the competence and autonomy of Member States, such measures must nevertheless, on the basis of the particular features of each situation, be applied in any event in accordance with the principles of Community law, in order to avoid discrimination between nationals of the various Member States.

(1) OJ C 78 E, 27.3.2004.