Case C-24/03: Action brought on 15 January 2003 by Italian Republic against Commission of the European Communities
Date: 2003-03-22
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, EU financing, European Commission, Italy, action for annulment (EU), expenditure, fruit, public stock, tobacco, vegetable

22.3.2003

EN

Official Journal of the European Union

C 70/9

(c)

(d)

information is given, albeit with the aim of mislead-
ing shareholders or the public in order to obtain
unjust enrichment, which is the result of valuations
or appraisals which, taken individually, diverge by
no more than a certain percentage from a correct
valuation or appraisal,

the falsehood, fraudulent omission or other infor-
mation which does not faithfully depict the asset or
financial position or profit and loss of the company
does not ‘appreciably affect’ the portrayal of the
asset or financial position of the company or group
of companies to which it belongs?

those directives and,

3. With reference to the obligation upon each Member State
to adopt ‘appropriate penalties’ for the infringements
provided for in the First Directive 68/151/EEC and Fourth
Directive 78/660/EEC, must
in
particular, the combined provisions of Article 44(2)(g)
of the Treaty Establishing the European Community,
Article 2(1)(f) and Article 6 of the First Directive and
Article 2(2),
(3) and (4) of the Fourth Directive, as
amended by Directive 83/349/EEC and Directive 90/605/
EEC, be interpreted as precluding the legislation of a
Member State under which, in the case of breach of the
duty to publish true and fair company documents, which
is intended to protect ‘the interests of shareholders and
third parties’, creates a system of penalties which:

in the most serious cases (where material damage or
loss is caused) permits only shareholders or creditors
thus
to apply for the imposition of penalties,
depriving third parties generally of effective protec-
tion,

(a)

(b)

Action brought on 15 January 2003 by Italian Republic
against Commission of the European Communities

(Case C-24/03)

(2003/C 70/15)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 15 January 2003 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Maurizio Fiorilli, Avvocato dello Stato.

The applicant claims that the Court should:

annul the decision of the Commission of 5 November 2002
No 4127 (1), which excludes from Community financing
certain expenditure incurred by the Italian Republic under the
Guarantee Section of the European Agricultural Guidance and
Guarantee Fund (EAGGF) as follows:

— Point B.2.1 of the report — financial year 1999-2000 —

fruit and vegetables — amount: EUR 68 050,00

— Point B.2.1 of the report — financial year 2000-2001 —

fruit and vegetables — amount: EUR 7 853,00

— Point B.4.1.6 of the report — financial year 1998-1999

— cereal storage — amount: EUR 1 272 616,34

in less serious cases (where no material damage is
caused and no complaint is submitted) provides for
a minor or summary offence (‘contravvenzione’)
which,
the Italian procedure
system, is, for the reasons set out in the grounds for
the present order, ineffectual,

in the context of

Pleas in law and main arguments

1.

F r u i t a n d v e g e t a b l e s

(c) permits individuals, by means of deferred with-
drawal of their complaint, to undo entirely any
protection of the right to transparency in company
matters?

( 1) OJ L 65 of 14.03.1968, p. 8.
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.

The Commission finds that the Italian authorities failed to
observe fully the provisions of Regulation No 2200/96 (2)
(Article 25) and Regulation No 659/97 (3) (Article 9(2) and (3))
resulting in an underestimation of the quantities communi-
cated when fixing the Community withdrawal compensation
(CWC): this led to the Commission adopting a CWC which
was too high.

However, the Italian authorities take the view that, according
to the Community legislation in force, they provided sufficient
information to the Commission which should have been able
to revise its calculation of the CWC, having found minimal
differences with respect to the final figures provided by the
paying agency. The failure on the part of the Commission to
amend the CWC cannot be attributed to the Italian authorities
which pointed it out and sought to quantify it.

C 70/10

EN

Official Journal of the European Union

22.3.2003

2.

P u b l i c s t o r a g e o f c e r e a l s

The Commission claims that the AIMA, since abolished, in the
course of taking over cereals during the marketing year 1997-
1998, failed to fix the first day on which the consignment was
taken over in the communication accepting the offer, so that
the date for setting the price was the date of first actual delivery
by the offeror.
In the Commission’s view, that entailed a
greater expenditure for the EAGGF than it might otherwise
have been liable for if the AIMA, while not having fixed the
delivery date beforehand, had nevertheless taken as a reference
date the day following the date of the letter of acceptance of
the offer, when delivery could potentially have begun. AGEA,
the paying agency, does not agree with the position adopted
by the Commission inasmuch as Regulation No 689/92 (4)
does not provide at all for the day following the date of the
letter of acceptance of the offer being adopted as the basis for
calculating the price to be paid for takeover of the goods.
Moreover, the regulation itself empowers the intervention
agency to lay down the delivery schedule, so that AIMA
assumes the schedule agreed between the storekeeper and the
offeror.

3.

P r e m i u m i n t h e r a w t o b a c c o s e c t o r

A review by the European Court of Auditors has shown an
error consisting in failure to observe the guarantee threshold
in respect of the 01 tobacco variety for the 1998 marketing
year.

Such an error did not lead to the specific guarantee threshold
for the remaining varieties being exceeded in the year in
question.

( 1) Commission Decision of 5 November 2002 excluding from
Community financing certain expenditure incurred by the Member
States under the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF), OJ 2002 L 306, p. 26.

( 2) OJ 1996 L 297, p. 1.
( 3) OJ 1997 L 100, p. 22.
( 4) OJ 1992 L 74, p. 18.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 August 2002 in the
proceedings between Finanzamt Bergisch Gladbach and
Hans U. Hundt-Eßwein

(Case C-25/03)

(2003/C 70/16)

Reference has been made to the Court of Justice of the
the Bundesfinanzhof
European Communities by order of

(Federal Finance Court) of 29 August 2002, received at the
Court Registry on 23 January 2003, for a preliminary ruling
in the proceedings between Finanzamt Bergisch Gladbach and
Hans U. Hundt-Eßwein on the following questions:

1.

Is a person who purchases or builds a house for his own
residential purposes acting as a taxable person in the
purchasing or building of that residence if he intends to
use one of its rooms as a ‘home office’ for engaging in a
sideline activity as a self-employed person?

If Question 1 is answered in the affirmative:

2. Where a community by undivided shares or marital
community which does not itself operate as a business
places an order in common for a capital item, should it
be assumed that the purchase concerned is made by a
non-taxable person who is not entitled to deduct the
value added tax charged on the purchase as input tax, or
are the members of that community recipients of the
transaction performed?

If Question 2 is answered in the affirmative:

3. Where spouses in a community by undivided shares
purchase a capital item but that item is used by only one
of those two spouses for the purposes of his business:

(a)

is that spouse entitled to effect only a pro rata
deduction in respect of the input tax attributable to
his share as purchaser,

or

(b)

is that spouse entitled under Article 17(2)(a) of
Directive 77/388/EEC (1) to deduct as input tax the
proportion attributable to his business use of the
item as a whole (subject to the invoicing require-
ments set out in Question 4)?

4.

For that spouse/co-owner to exercise his right to deduct
in accordance with Article 18 of Directive 77/388/
EEC, must he hold an invoice, as provided for under
Article 22(3) of the directive, which has been issued to
him alone and states the proportion of the payments and
corresponding tax attributable to him, or is it sufficient
for the spouses/co-owners to be issued with the invoice
without any such apportionment of the amounts due?

(1) OJ L 145 of 13.06.1977, p. 1.