Case C-437/01: Action brought on 12 November 2001 by the Commission of the European Communities against the Italian Republic
Date: 2002-02-02
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, excise duty, mineral oil, tax harmonisation

C 31/4

EN

Official Journal of the European Communities

2.2.2002

Action brought on 12 November 2001 by the Com-
mission of the European Communities against the Italian
Republic

exempted from tax should result in zero tax, Italian excise duty
is at a high rate of LIT 1 260 000 per 1 000 kg of lubricating
oil. This is clearly contrary to Article 3(2) of Directive 92/12
in conjunction with Article 8(1)(a) of Directive 92/81.

(Case C-437/01)

(2002/C 31/07)

(1) OJ L 76, 23.3.1992, p. 1.
(2) OJ L 316, 31.10.1992, p. 12.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 Novem-
ber 2001 by the Commission of the European Communities,
represented by Enrico Traversa and Kilian Gross, acting as
Agents.

The applicant claims that the Court should:

— declare that, by maintaining in force a tax on lubricating
oils the Italian Republic has breached its obligations
under Article 3(2) of Council Directive 92/12/EEC (1) of
25 February 1992 on the general arrangements for
products subject to excise duty and Article 8(1)(a) of
Council Directive 92/81/EEC (2) of 19 October 1992 on
the harmonisation of the structures of excise duties on
mineral oils;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that allowing Italy to impose a
national tax on lubricating oils which it is bound to exempt
from harmonised excise duty under Article 8(1)(a) of Directive
92/81 would deprive that article of any practical effect.

For the purposes of the application of Article 3(2) of Directive
92/12 exemptions are covered either by the rules on determin-
ing the tax base or by the rules concerning the arrangements
It follows
for the calculation of harmonised excise duty.
that the Italian tax on lubricating oils is incompatible with
Article 3(2) of that directive since a tax of that sort is not
consistent with the general scheme of rules relating to excise
duty on mineral oils as far as calculation of the tax and
determination of the tax base are concerned. Whereas the
application of harmonised excise duty to a taxable subject

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat im Land Niederösterreich, Aussenstelle
Mistelbach, by order of that court of 6 November 2001 in
the case of Libor Cipra and Vlastimil Kvasnicka against
Bezirkshauptmannschaft Mistelbach.

(Case C-439/01)

(2002/C 31/08)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-
tungssenat im Land Niederösterreich, Aussenstelle Mistelbach,
(Independent Administrative Chamber in the Land of Lower
Austria, Mistelbach Branch) of 6 November 2001, received at
the Court Registry on 13 November 2001, for a preliminary
ruling in the case of Libor Cipra and Vlastimil Kvasnicka
against Bezirkshauptmannschaft Mistelbach, on the following
questions:

1. Do drivers falling within the scope of Council Regulation
No 3820/85 of 20 December 1985 on the harmonisation
of certain social legislation relating to road transport (1)
have to satisfy the requirements set out in Article 8(1)
and (2) of that regulation cumulatively where there are
two drivers or is Article 8(2) a special rule that prevails
over Article 8(1)?

2. Where there are two drivers falling within the scope of
Council Regulation No 3820/85 of 20 December 1985
on the harmonisation of certain social legislation relating
to road transport, is Article 8(1) of that regulation, or
possibly Article 8(1) and (2),
inapplicable because of
incompatibility with superior Community law?

(1) OJ L 370, p. 1.