Case C-136/01 P: Appeal brought on 23 March 2001 by Autosalone Ispra Snc dei Fratelli Rossi, established in Ispra, against the order made on 17 January 2001 by the Second Chamber of the Court of First Instance of the European Communities in Case T-124/99 between Autosalone Ispra Snc dei Fratelli Rossi and European Atomic Energy Community, represented by the Commission of the European Communities
Date: 2001-05-19
Institutions: Court of Justice
Subjects: EAEC, General Court (EU), action for annulment (EU), damages, flood

19.5.2001

EN

Official Journal of the European Communities

C 150/17

— Order the Italian Republic to pay the costs.

Pleas and principal arguments

(a) Article 94 of Royal Decree No 1127 of 29 June 1939
prevents industrial property consultants properly pursu-
ing their profession in other Member States but not
entered on the requisite register in Italy from acting,
occasionally and on a temporary basis, as agents in
dealings with the Patent Office on behalf of clients who
approach them for that purpose.

In the Commissions’s view, that requirement is contrary
to Article 49 of the EC Treaty: although it is true that, in
the absence of harmonisation, Member States are in
principle competent to define the requirements for access
to the practice of an activity, that does not mean that
they are released from the requirement of upholding the
fundamental
in
particular as provided by Article 49.

freedoms guaranteed by the Treaty,

(b)

For entry on the register of patent consultants authorised
to practise in Italy, Article 2 of Ministerial Decree 342/95
imposes the further requirement of having a residence or
a professional office in Italy, except in the case of citizens
of States which allow Italian citizens to be entered on the
corresponding registers without fulfilling that require-
ment.

It is clear that a consultant intending to practise alone in
Italy would find it very difficult to establish a professional
practice in that country. He would feel unable to proceed,
for which reason in this case too that there is clearly an
unjustified obstacle to observance of the principle of
freedom to provide services.

Appeal brought on 23 March 2001 by Autosalone Ispra
Snc dei Fratelli Rossi, established in Ispra, against the
order made on 17 January 2001 by the Second Chamber
of the Court of First Instance of the European Communi-
ties in Case T-124/99 between Autosalone Ispra Snc dei
Fratelli Rossi and European Atomic Energy Community,
represented by the Commission of the European Com-
munities

(Case C-136/01 P)

(2001/C 150/32)

was brought before the Court of Justice of the European
Communities on 23 March 2001 by Autosalone Ispra Snc dei
Fratelli Rossi, represented by Francandrea Venuto, of the Busto
Arsizio Bar, with an address for service at the Chambers of
Mr Kronshagen, 22 Rue Marie Adélaïde.

The appellant claims that the Court of Justice should:

— Set aside in its entirety the order of the Court of First

Instance contested in these proceedings:

— Find and declare that the abovementioned order was
made in breach of Article 111, Chapter II, of the
Rules of Procedure of the Court of First Instance of
the European Communities;

— In any event reject the objection raised by the
Commission of the European Communities before
the Court of First Instance of the European Com-
munities that the action is time-barred;

— In any event find and declare that the application
originating the proceedings before the Court of First
Instance of the European Communities in Case
T-124/99 is admissible;

— Grant in its entirety the form of order sought by the

applicant at first instance:

— Find and declare that the EAEC is liable under the
second paragraph of Article 188 of the EAEC Treaty
on the basis of the facts and documents relied on by
the applicant in those proceedings, which are to be
deemed to be reproduced in their entirety in this
notice of appeal;

— Consequently, order the EAEC, represented by the
Commission of the European Communities, to pay
to the persons vested with legal representation of
the appellant, Autosalone Ispra Snc dei Fratelli Rossi,
the principal sum of ITL 1 245 000 000 , adjusted
by way of monetary revaluation, with interest
accruing thereon until due payment, or such other
sum as may be held to be fair;

— The decision given should be enforceable and
include an order that the defendant pay the costs at
both instances;

— By way of preparatory inquiry, grant the preparatory
measures requested by the applicant before the
Court of First Instance.

Pleas in law and main arguments

An appeal against the order made on 17 January 2001 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-124/99 between Autosalone Ispra Snc
dei Fratelli Rossi and European Atomic Energy Community,
represented by the Commission of the European Communities,

The appellant submits that the order made by the Court of
First Instance is vitiated for the following reasons:

— Failure to hear the views of the Advocate General.

C 150/18

EN

Official Journal of the European Communities

19.5.2001

— The Court of First

Instance decided to rule on the
admissibility of the application without appraising all the
relevant matters of fact and of law.

— The Court of First Instance infringed upon the applicant’s
right of action by failing to take into consideration
whether or not it was possible for the parties to have
proper access to the facts relevant to the case, which were
in fact not available until 15 May 1995 for objective
reasons and because of the conduct of the Community.
The appellant also alleges that the limitation period laid
down by the abovementioned provision, to which there
are no exceptions, was improperly curtailed.

Action brought on 28 March 2001 by the Commission of
the European Communities against the Italian Republic

(Case C-142/01)

(2001/C 150/33)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 March
2001 by the Commission of the European Communities,
represented by Maria Patakia and Antonio Aresu, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by maintaining in force Article 12(1) of Law
No 81 of 8 March 1991, which makes the recognition of
ski monitors’ diplomas subject to a reciprocal condition,
the Italian Republic has failed to fulfil
its obligations
under Council Directive 92/51/EEC (1) of 18 June 1992
on a second general system for the recognition of
professional education and training to supplement Direc-
tive 89/48/EEC (2); and

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 12(1) of Law No 81 of 8 March 1991 is incompatible
with Directive 92/51/EEC given that it imposes a condition of
reciprocity in order to obtain recognition of a diploma for ski
monitors obtained in another Member State, thereby adding
to the directive a condition which it does not provide for.

(1) OJ 1992 L 209, p. 25.
(2) OJ 1989 L 19, p. 16.

Action brought on 30 March 2001 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-143/01)

(2001/C 150/34)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 30 March
2001 by the Commission of the European Communities,
represented by Mr Dı´az-Llanos La Roche and Mr Go´ mez de la
Cruz Talego´ n, whose address for service in Luxembourg is that
of Mr Go´ mez de la Cruz, Wagner Centre C2/254, Kirchberg.

The applicant claims that the Court should:

— Declare that, by applying a reduced rate of VAT to
supplies, intra-Community acquisitions or importations
of liquified petroleum gas, the Kingdom of Spain has
failed to fulfil its obligations under Article 12 of the Sixth
VAT Directive (1)

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission does not concur with the arguments put
forward by the Spanish authorities that butane gas is a fuel
similar to natural gas, for which reason it should be subject to
the same tax system. Article 12(3)(b) of the Sixth VAT Directive
constitutes an exception and does not allow for application by
analogy.

Even if a supply of butane gas (sucAh gas being the fuel used
by social groups with limited economic means), could be
considered as falling within the ambit of ‘cultural or social
services’ for the purposes of Annex H, to which Article 12(3)(a)
refers, the application of a reduced rate of VAT would lack,
even in that case, any legal basis. Paragraph 14 of Annex H to
the directive states that such supplies of goods or services must
be made by ‘organisations recognised as charities by Member
States and engaged in welfare or social security’.

(1) Council Directive 77/388/EEC of 17 May 1977 on the harmonis-
ation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of
assessment (OJ L 145 of 13.6.1977, p. 1).