Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02: Reference for a preliminary ruling by the Il Tribunale Di Brescia, Seconda Sezione Civile by order of that Court of 21 January 2002 in the civil case of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by order of 8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA (C-98/02) against Ministero delle Finanze
Date: 2002-06-01
Institutions: Court of Justice
Subjects: company with share capital, indirect tax, interpretation of the law, limited partnership, private limited company, redemption

C 131/4

EN

Official Journal of the European Communities

1.6.2002

Reference for a preliminary ruling by the Il Tribunale Di
Brescia, Seconda Sezione Civile by order of that Court of
21 January 2002 in the civil case of Società Dolomite
Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a.
(C-89/02) against Ministero delle Finanze; by order of
8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/
02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA
(C-98/02) against Ministero delle Finanze

(Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02)

(2002/C 131/08)

Reference has been made to the Court of Justice of the
European Communities by orders of the Il Tribunale Di Brescia
(Brescia Regional Court) Seconda Sezione Civile (Second Civil
Chamber) of 21 January 2002, received at the Court Registry
on 14 March 2002, for a preliminary ruling in the civil cases
of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite
Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by
order of 8 October 2001, received at the Court Registry on
18 March 2002, in the cases of Ugine Srl (C-95/02), TOMAR
Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA
(C-98/02) against Ministero delle Finanze, on the following
questions:

1.

2.

Is Article 11(1) of Italian Law No 448 of 23 December
1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
supplement) compatible with Community law, in particu-
lar with Articles 10 and 12 of Council Directive 69/335/
EEC (1) of 17 July 1969 concerning indirect taxes on the
raising of capital,
the
administrative charge is payable at a flat annual rate for
registration of other company documents for each of the
years from 1985 to 1992, equal to the sum of the
sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for
private limited companies and ITL 90 000 for other
companies?

inasmuch as it provides that

Is Article 11(3) of Law No 448/98 compatible with
Community law, inasmuch as it provides that interest on
the sums to be reimbursed in so far as they exceed the
sum provided for by Article 11(1) should be calculated
according to the legal rate in force at the date on which
that Law entered into force (2,5 % per annum) and not
according to the rate provided for by Article 5 with
respect to Article 1 of Law No 29 of 26 January 1961, as
subsequently amended?

(1) OJ L 249 of 3.10.1969, p. 25.

Action brought on 20 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-104/02)

(2002/C 131/09)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 20 March 2002 by the Commission of the European
Communities, represented by Günter Wilms, of
its Legal
Service, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg.

The applicant claims that the Court should:

(1) declare that

the Federal Republic of Germany has
infringed its obligations under Article 49 of Commission
Regulation (EEC) No 1214/92 (1) of 21 April 1992 on
provisions for the implementation of the Community
transit procedure and for certain simplifications of that
procedure and/or Article 379 of Commission Regulation
(EEC) No 2454/93 (2) of 2 July 1993 laying down
provisions for the implementation of Council Regulation
(EEC) No 2913/92 (3) establishing the Community Cus-
toms Code in conjunction with Article 2(1) of Council
Regulation (EEC, Euratom) No 1552/89 of 29 May
1989 (4) implementing Decision 88/376/EEC, Euratom
on the system of the Communities’ own resources, by
transferring own resources to the Community too late;

(2) declare that the Federal Republic of Germany is obliged,
pursuant to Article 11 of Regulation No 1552/89 for the
period up to 31 May 2000 and Article 11 of Regulation
1150/2000 (5) for the period after 31 May 2000, to pay
into the Community budget the interest accrued as a
result of the late transfer;

(3) order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Article 49 of Regulation No 1214/92 (on the implementation
of the Community transit procedure) and Article 379 of
Regulation No 2454/93 (implementing the Customs Code) set
a clear and mandatory time-limit by which the customs
authorities of the Member States must initiate post-clearance
recovery proceedings. This is not purely a procedural time-
limit. Had it intended to do so, the legislature would have
identified such a time-limit by using less binding wording. The
intention of the legislature and the unambiguous wording of
the statute permit solely the conclusion that Article 49 of
Regulation No 1214/92 and Article 379(2) of Regulation
No 2454/93 do not merely provide for action which the State
ought to take but, rather, prescribe a binding obligation. Post-
clearance recovery must be carried out by no later than the
expiry of a period of 14 months. Since both the debtor and
the amount of the debt to be claimed from him are known to
the custom authorities by that stage, the debtor must be