Case C-59/01: Action brought on 12 February 2001 by the Commission of the European Communities against the Italian Republic
Date: 2001-05-05
Institutions: Court of Justice
Subjects: European Commission, Italy, action for annulment (EU), civil liability, contract, insurance

C 134/4

EN

Official Journal of the European Communities

5.5.2001

Reference for a preliminary ruling from the Bundesfi-
nanzhof, by order of that court of 14 December 2000
in the case of Christoph-Dornier-Stiftung für Klinische
Psychologie against Finanzamt Giessen

Reference for a preliminary ruling by the Special Com-
missioners (United Kingdom), by order of 6 February
2001, in the case of Océ van der Grinten NV against
Inland Revenue Commissioners

(Case C-45/01)

(2001/C 134/06)

(Case C-58/01)

(2001/C 134/07)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 14 December 2000, received at the
Court Registry on 2 February 2001, for a preliminary ruling in
the case of Christoph-Dornier-Stiftung für Klinische Psycholog-
ie against Finanzamt Giessen on the following questions:

1. Does psychotherapeutic treatment, given in an out-
patient
facility provided by a foundation (charitable
establishment) employing qualified psychologists who
are licensed under the Medical Practitioners Law (Heil-
praktikergesetz) but who are not registered as doctors,
qualify as ‘closely related activities’ to hospital and medical
care within the meaning of Article 13A(1)(b) of Directive
77/388/EEC (1)?

2.

3.

4.

In order for there to be an ‘other duly recognized
establishment of a similar nature’ within the meaning of
Article 13A(1)(b) of Directive 77/388/EEC, must there be
a formal recognition procedure or can recognition also
derive from other regulations (e.g. regulations concerning
the assumption of costs by authorities responsible for the
provision of social security) which apply equally to
hospitals, centres for medical treatment and other estab-
lishments?

Is an exemption from tax unavailable to the extent that
the authorities responsible for providing social security
do not reimburse, or only partially reimburse, patients
for the costs of psychotherapeutic treatment given by the
aforementioned employees of the plaintiff?

Is the psychotherapeutic treatment provided by the
plaintiff exempt from tax on the basis of the neutrality of
value added tax, because the psychotherapists it employs
could have provided the same treatment on a tax-exempt
basis under Article 13A(1)(c) of Directive 77/388/EEC if
they had provided it themselves as self-employed taxable
persons?

Is the plaintiff entitled to rely on the tax exemption of
its transactions involving psychotherapeutic treatment
under Article 13A(1)(b) and (c) of Directive 77/388/EEC?
Pending the decision of the Court of
Justice of the
European Communities,
the appeal proceedings are
stayed.

(1) OJ 1977 L 145, p. 1.

Reference has been made to the Court of Justice of the
European Communities by an order of the Special Com-
missioners (United Kingdom) of 6 February 2001, which was
received at the Court Registry on 12 February 2001, for a
preliminary ruling in the case of Océ van der Grinten NV
against Inland Revenue Commissioners, on the following
questions:

1.

2.

3.

In the circumstances set out in the Order for reference, is
the 5 % charge specified in sub-paragraph (a)(ii) of
Article 10.3 of the UK/Netherlands Double Taxation
Convention 1980 (‘the 5 % charge’) a withholding tax on
profits which a subsidiary distributes to its parent com-
pany within
of Council Directive
5.1
90/435/EEC (1) of 23 July 1990 (‘the Directive’)?

article

If the 5 % charge is such a withholding tax is its effect
preserved as a consequence of Article 7.2 of the Directive?

If the 5% charge is preserved only as a consequence of
article 7.2 of the Directive, is Article 7.2 invalid for want
of reasoning or failure to consult
the ESC and the
European Parliament, with the result that it does not have
the effect of preserving the right of the United Kingdom
to charge the 5 % tax?

(1) on the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member States (OJ
L 225, 20.08.1990, p. 6).

Action brought on 12 February 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-59/01)

(2001/C 134/08)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 February
2001 by the Commission of the European Communities,
represented by Christina Tufvesson and Antonio Aresu, acting
as Agents.

5.5.2001

EN

Official Journal of the European Communities

C 134/5

The applicant claims that the Court should:

— declare that the Italian Republic has failed to fulfil its
obligations under Council Directive 92/49/EEC (1) of
18 June 1992 on the coordination of laws, regulations
and administrative provisions relating to direct insurance
other
than life assurance and amending Directives
73/239/EEC and 88/357/EEC (third non-life insurance
Directive) in that it has set up and kept in force a system
of premium controls applicable to all contracts for the
insurance of civil liability arising from the use of motor
vehicles in relation to risks situated within Italian territory,
without distinguishing between insurance companies
having their head office in Italy and those conducting
their business in Italy through branch offices or under the
freedom to provide services, in breach of:

(a)

(b)

the principle of the freedom to set premiums and
the abolition of prior or systematic controls over
premiums and contracts, as dealt with in Articles 6,
29 and 39 of the said directive;

the provisions of Article 44 of the said directive,
which concern arrangements for gathering infor-
mation on the amount of the premiums, claims and
commission, the frequency and average cost of
claims, and the exchange of information between
the regulatory authorities of the Member State of
origin and those of the host Member State;

— order the Italian Republic to pay the costs of

the

proceedings.

Pleas in law and main arguments

The Commission submits that:

Freezing the premiums and certain other components of
the contractual offer, and requiring all civil liability motor
insurance undertakings to offer contracts with premiums
calculated by reference to a no-claims bonus, and with full
indemnity, for between ITL 500 000 and ITL 1 000 000, are
measures which should be regarded as inconsistent with the
principle of freedom to set premiums enshrined by Articles 6,
29 and 39 of Directive 92/49/EEC. Insurers who provide
contracts covering risks situated within Italian territory do not
enjoy the right to determine freely these components of their
contractual offer. There appears to be no justification for this
restriction of the freedom to set premiums.

Article 2(5)(a) and (d) of Decree No 70 of 28 March 2000,
which confers upon ISVAP (the Istituto per la vigilanza sulle
assicurazioni private e di interesse collective, the Private and
Collective Interest Insurance Supervisory Authority) authority
to supervise insurance undertakings offering ‘compulsory
motor insurance’ in connection with the matters set out in
Article 2(2), (3) and (4), is incompatible with the provisions of
Article 44 of
the directive concerning the gathering of
information on the amount of the premiums, claims and
commissions,
the frequency and average cost of claims,
and the exchange of information between the supervisory
authorities of the Member State of origin and those of the
host Member State. As regards the communication of such
information, insurance undertakings operating in Italy under

the freedom of establishment or the freedom to provide
services actually have a duty to account to the competent
authorities of the Member State of origin only.

Lastly, under the last sentence of Article 2(5)(d) of Decree
No 70, insurance undertakings operating in Italy, including
their business under the freedom of
those that conduct
establishment or the freedom to provide services, are required
to contribute to the funding and management costs of the data
bank set up under Decree No 70. A requirement such as that
is linked to the obligation to provide ISVAP with information
laid down by Article 2 of Decree No 70, which is itself
inconsistent with Article 44 of the directive. Consequently, the
obligation to contribute to the funding of the data bank
imposed upon undertakings operating under the freedom of
establishment or the freedom to provide services within Italian
territory is clearly also inconsistent with Community law.

(1) OJ 228 of 11.8.1992, p. 1.

Appeal brought on 12 February 2001 (facsimile of 9 Feb-
ruary 2001) by Anna Maria Campogrande against the
judgment delivered on 7 December 2000 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Case T-136/98 between A.M. Campo-
grande and Commission of the European Communities

(Case C-62/01 P)

(2001/C 134/09)

An appeal against the judgment delivered on 7 December
2000 by the Fourth Chamber of the Court of First Instance
of the European Communities in Case T-136/98 between
A.M. Campogrande and Commission of the European Com-
Justice of the
munities was brought before the Court of
European Communities on 12 February 2001 (facsimile of
9 February 2001) by A.M. Campogrande, represented by Anne
Krywin, avocat, with an address for service in Luxembourg.

The appellant claims that the Court should:

Declare the present appeal admissible and well-founded;

Accordingly,

— set aside the judgment in Case T-136/98 of the Court of
First Instance of 5 December 2000 in so far as it finds: