Case C-388/01: Action brought on 8 October 2001 by the Commission of the European Communities against the Italian Republic
Date: 2001-12-08
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, cultural heritage, freedom to provide services, tariff preference

8.12.2001

EN

Official Journal of the European Communities

C 348/15

— order the French Republic to pay the costs.

Reference for a preliminary ruling by the Rechtbank van
Eerste Aanleg te Veurne by judgment of 4 May 2001 in
criminal proceedings brought against Klaus Hans Fritz
Brügge; civil party: Benedikt Leliaert

Pleas in law and main arguments

In this action the Commission is seeking a declaration of a
failure in two respects to comply with the provisions of the
Sixth Directive: first, a failure to comply with the first and
third sentences of Article 12(3) (a) thereof, inasmuch as France
is applying a reduced rate contrary to that provision and,
secondly, a failure to comply with Article 12(3) (b) concerning
the procedure for authorisation of application of a reduced
rate on supplies of natural gas and electricity.

— On the consultation procedure (Article 12(3)(b)): as long
as France had not replied to the request for additional
information,
the Commission was unable to take a
definitive view. In the absence of full information, despite
a request to that effect, the Commission was entitled to
take the view that the French authorities had withdrawn
their request. Consequently, by not forwarding the infor-
mation requested by the Commission in order to enable
it to take a decision under Article 12(32)(b), France has
failed to fulfil its obligations under that provision.

— On the substance of the measure (Article 12(3)(a)): if
the supply agreement is regarded as a specific service
representing fixed costs as distinct from the actual supply
of energy, the reduced rate would then have no legal basis
in Article 12(3)(a) which refers to Annex H and in which
the agreement or the supply of energy does not feature.
Moreover, there is no warrant for that reduced rate in
Article 12(3)(b) which merely mentions ‘supplies of
natural gas and electricity’. If, on the other hand, the
agreement to supply is viewed as forming part of the
actual supply of energy, then France is obliged to apply
the same rate to a transaction relating to the same asset
in accordance with the principle of a single rate under
Article 12(3)(a). Thus, under Article 12(3)(1b) it is then
the whole of the transaction (agreement and supply)
to the same reduced rate.
which should be subject
Consequently, notwithstanding all the distinctions which
France has sought to draw between the agreement to
supply and the actual supply of energy, and however
such agreement maybe described, France cannot but be
found to have failed to fulfil
its obligations under
Article 12(3)(a) and (b) of the Sixth VAT Directive.

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

(Case C-385/01)

(2001/C 348/27)

Reference has been made to the Court of Justice of the
European Communities by judgment of 4 May 2001 by the
Rechtbank van Eerste Aanleg te Veurne (Court of First Instance,
Veurne), which was received at the Court Registry on 8 October
2001, for a preliminary ruling in criminal proceedings brought
against Klaus Hans Fritz Brügge; civil party: Benedikt Leliaert,
on the following question:

Does application of Article 54 of the Schengen Agreement of
19 June 1990 allow the Belgian Openbaar Ministerie (Public
Prosecutor’s Department) to require a German national to
appear before the Belgian criminal courts and allow those
courts to sentence that national in the case where the German
Public Prosecutor’s Department, on the basis of the same facts,
has offered that German national the opportunity to make
payment in an out-of-court settlement, which that national
has accepted?

Action brought on 8 October 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-388/01)

(2001/C 348/28)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 8 October
2001 by the Commission of the European Communities,
represented by Marian Patakia and Roberto Amorosi, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by maintaining in force discriminatory
charges for admission to public museums, monuments,
galleries, archaeological digs, parks and gardens in Italy,
granted by local or decentralised authorises which only
favour Italian nationals or residents within the territory
of the administrative authority running the cultural sites
in question and who are aged over 60 or 65 years, to the
exclusion of tourists who are nationals of other Member

C 348/16

EN

Official Journal of the European Communities

8.12.2001

States or of persons who are not resident in such areas,
despite fulfilling the same age requirement, the Italian
its obligations under
Republic has
Articles 12 and 49 of the EC Treaty.

failed to fulfil

— Order the Italian Republic to pay the costs.

administrative provisions necessary to comply with
Council Directive 96/29/Euratom of 13 May 1996 laying
down basic safety standards for the protection of the
health of workers and the general public against the
dangers arising from ionising radiation (1), the Portuguese
Republic has
its obligations under
failed to fulfil
Articles 55(1) of that Directive,

Pleas in law and main arguments

Granting advantageous admission charges only to Italian
nationals constitutes a restriction on the right to have access
to services to which tourists visiting Italian archaeological and
cultural sites are entitled.

The granting of advantageous admission charges to certain
categories of visitors, in this case to those aged over 60 or
65 years, on the basis of their residence within the municipality
in which the cultural site is located, constitutes indirect
discrimination on grounds of nationality since in the end it
affects mainly non-Italian Community tourists, whose
exclusion from benefiting from the lower charges constitutes
the disguised objective.

The lower charges offered by the municipal museums thus
infringe Articles 12 and 49 of the EC Treaty inasmuch as they
constitute discrimination on grounds of nationality.

— in the alternative, declare that, by failing to inform
the Commission immediately of such measures,
the
Portuguese Republic failed to fulfil its obligations under
that Directive,

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The provisions of the third paragraph of Article 161 and the
first paragraph of Article 192 of the EAEC Treaty require
Member States to adopt the measures necessary to transpose
directives addressed to them into their domestic law before the
expiry of the period prescribed for doing so. Despite that
period having expired (13 May 2000) the Portuguese Republic
has still not brought into force the provisions necessary to
transpose Directive 96/29/Euratom into its legal system.

(1) OJ 1996 L 314, p. 20.

Action brought on 9 October 2001 by the Commission
of the European Communities against the Portuguese
Republic

(Case C-389/01)

(2001/C 348/29)

Action brought on 9 October 2001 by the Commission
of the European Communities against the Portuguese
Republic

An action against
the Portuguese Republic was brought
before the Court of Justice of the European Communities
on 9 October 2001 by the Commission of the European
Communities, represented by Anto´ nio Caeiros, acting as
Agent, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, Wagner Centre.

(Case C-390/01)

(2001/C 348/30)

The applicant claims that the Court should:

— declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and

An action against the Portuguese Republic as brought before
the Court of Justice of the European Communities on 9 Octo-
ber 2001 by the Commission of the European Communities,
represented by Anto´ nio Catiros, acting as Agent, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, Wagner Centre.