Case C-298/02: Action brought on 21 August 2002 by the Italian Republic against the Commission of the European Communities
Date: 2002-10-26
Institutions: Court of Justice
Subjects: Italy, action for annulment (EU), agro-industry, aid system, fruit product, pip fruit, production aid, stock, stone fruit

26.10.2002

EN

Official Journal of the European Communities

C 261/5

3. Are the administrative and control procedures for the
reduction in excise duty which is possible under
Article 8(2)(f) of Directive 92/81/EEC governed by
Article 8(8) of Directive 92/81/EEC without the appli-
cation of a marker or by Article 1(1) of Directive 95/60/
EC (2)?

4.

5.

If the third question should be answered to the effect that
the Member States which exercise the power under
Article 8(2)(f) of Directive 92/81/EEC are obliged,
in
an instance comparable to the present case, to grant
reductions in duty also in the form of a refund of excise
duty, is a reduction in excise duty for agricultural works
contrary to the freedom to provide services if
the
reduction is linked to a marking procedure under
Article 1(1) of Directive 95/60/EC that is not applied in
this context by other Member States, which on the
contrary impose excise-duty penalties in the case of
markings for which no provision is made under their
legal systems?

If the answer to the fourth question should be in the
affirmative, does the breach of the freedom to provide
services mean that liability to pay duty is expunged, or
would the claimant, in order to achieve exemption from
duty, be obliged to ask for unmarked mineral oil and
apply for a refund of excise duty in the Member State in
which it obtains marked gas oil at a reduced rate of duty?

( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.

Is the amount of aid also to be reduced under the second
indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
where the special premium for male bovine animals applied
for when this provision of Community law was in force cannot
for legal reasons be granted to the farmer but where in the
words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
the farmer submitted factually correct information or can
show otherwise that he was not at fault?

(1) OJ L 391, 31.12.1992, p. 36.
(2) OJ L 327, 12.12.2001, p. 11.

Action brought on 21 August 2002 by the Italian Republic
against the Commission of the European Communities

(Case C-298/02)

(2002/C 261/09)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 August 2002 by the Commission of the
European Communities, represented by Umberto Leanza,
acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
Stato.

The applicant claims that the Court should:

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that Court of
1 August 2002 in the administrative-law case of Mrs Gisela
Gerken against Amt für Agrarstruktur Verden

— annul Commission decision No 2281 (1) of 26 June
2002 in so far as it makes a financial correction of
EUR 12 253 816 in respect of account headings B1-
1512-001 and B1-1512-004 so far as concerns Italy.

(Case C-295/02)

(2002/C 261/08)

Pleas in law and main arguments

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-
ive Court) of 1st August 2002, received at the Court Registry
on 19 August 2002, for a preliminary ruling in the administrat-
ive-law case of Mrs Gisela Gerken against Amt für Agrar-
struktur (Office for Agriculture) Verden on the following
question:

Aid for peaches and pears intended for the production of fruit
salad — financial correction

According to the Commission, during the 1995-96, 1996-
97 and 1997-98 marketing years, aid was granted for a final
product which did not conform to the definitions contained in
Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
two regulations provided for the payment of aid for whole or
sliced peaches and pears provided that they had undergone

C 261/6

EN

Official Journal of the European Communities

26.10.2002

heat treatment or had been packaged in airtight containers.
The Commission claims that the peaches and pears intended
for the production of fruit salad had not undergone adequate
heat treatment (pasteurisation or sterilisation) and had been
stored in open containers, irrespective of the fact that those
products had been stored for only a few days before being
included in fruit salads. The infringement of the regulations
those products as
was in respect of the classification of
‘intermediate products for the production of fruit salad’. Such
a product was not approved for aid until 1997-1998. The
Commission’s position is not valid. Payment of the aid to the
processing industries was effected pursuant to Regulation (EC)
No 504/97, which defines peaches in syrup and/or in natural
fruit juice as whole peaches or pieces of peaches, without peel,
having undergone a heat treatment, packed in hermetically
sealed containers with a covering liquid of sugar syrup or
natural fruit juice. The regulation does not specify the type of
container, require that heat treatment should be applied, nor
lay down the intended use. The Italian Government claims that
the financial correction applied to 100 % of the products
subsequently intended for the production of fruit salad con-
tained in 200 kilogram containers is unlawful and should be
annulled.

Inadequate checks on stocks

The Commission may claim that checks were inadequate only
if it should be found that the objectives laid down in the
regulation relating to the determination of the methods for
applying the production aid scheme for such processed
products containing fruit and vegetables had not been attained.
In the present case, no evidence to that effect has even
been proffered.
It follows that the complaint is general,
unsubstantiated and, therefore, unlawful. Moreover, it should
be observed that the EAGGF has never given any indication as
to what method to apply for inspecting stocks, nor is such a
method mentioned in the regulations governing the sector. It
follows that the Commission cannot claim that a prescribed
accounting and verification method was infringed. Accord-
ingly, the financial correction of 10 % by way of a penalty for
the alleged inadequate implementation of checks is unlawful.

( 1) OJ 2002 L 170, p. 77. Commission Decision excluding from
Community financing certain expenditure incurred by the Member
States under the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF).

( 2) OJ L 144, 8.6.1991, p. 31.
( 3) OJ 1997 L 78, p. 14.

Reference for a preliminary ruling by the Commissione
Tributaria di Primo Grado di Trento, Sezione No 6 by
order of that Court of 6 June 2002 in the cases pending
between Petrolvilla & Bortolotti Spa (previously S.C.D.
Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa,
NTB Spa (previously Nuova Tessilbrenta Spa), Hotel
Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel
Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
di Campiglio Spa against Agenzia delle Entrate (previously
Direzione delle Entrate) per la Provincia di Trento

(Case C-306/02)

(2002/C 261/10)

Reference has been made to the Court of
Justice of the
European Communities by order of the Commissione Tributa-
ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
Instance, Trento, Sixth Chamber) of 6 June 2002, received at
the Court Registry on 27 August 2002, for a preliminary
ruling in the cases pending between Petrolvilla & Bortolotti
Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002
Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta
Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni
Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
di Campiglio Spa against Agenzia delle Entrate (previously
Direzione delle Entrate) per la Provincia di Trento on the
following question:

the net assets consisting exclusively of

‘Does the annual assessment to tax at the rate of 0.75 % per
annum of a company’s net assets pursuant to Decree-Law
No 324 of 30 September 1992 in so far as it relates solely to
that part of
the
company’s capital as disclosed annually in the balance sheet,
constitute a tax having equivalent economic effect to capital
duty already levied at the maximum rate of 1 %, thus rendering
it
in particular,
incompatible with Community law and,
Council Directive 69/335/EEC of 17 July 1969 (1)?’

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

Action brought on 5 September 2002 by the Kingdom
of Sweden against the Commission of the European
Communities

(Case C-312/02)

(2002/C 261/11)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European