Case C-134/03: Reference for a preliminary ruling by the Giudice di Pace of Genoa-Voltri by order of that Court of 10 March 2003 in the case of Viacom Outdoor S.r.l. against Société GIOTTO Immobilier S.a.r.l.
Date: 2003-06-21
Institutions: Court of Justice
Subjects: State aid, application of EU law, award of contract, interpretation of the law, tax system

21.6.2003

EN

Official Journal of the European Union

C 146/23

Pleas in law and main arguments

The Appellants submit that the Court of First Instance erred in
law in so far as it held that, as a matter of principle, a decision
to commence proceedings cannot be considered to be a
decision which is open to challenge. Apart from the judgment
of the Court of Justice of the European Communities in case
60/81, IMB v. Commission, which establishes admissibility
where there are ‘exceptional circumstances’,
the case-law
clearly demonstrates that admissibility of new classes or types
of application is determined on a case by case basis.

The Court of First Instance misinterpreted the case-law when
it found that no legal effects ensued from the loss of the
possibility of obtaining a preliminary ruling from the Court of
Justice of the European Communities as to the Commission’s
competence to commence proceedings in a third state in an
attempt to recover allegedly unpaid customs duties and VAT.
In concluding that commencing proceedings in a third country,
rather than in the Community, did not have legal effects, the
Court of First Instance also misinterpreted the case-law that
provides that where a definitive choice has been made for one
procedure over another, the decision embodying that choice
has legal effects for the purpose of Article 230.

The Court of First Instance also failed to recognise that by the
contested decisions the Commission took a definitive position
as to its competence as a matter of EC law, which constitutes
legal effects within the meaning of the established case-law.

The Appellants also submit that the Court of First Instance
was incorrect to proceed on the basis that the District Court
could remedy the lack of a preliminary reference mechanism
in the United States by applying Community law itself, that by
declaring the application inadmissible,
the Court of First
Instance violated their right to effective judicial protection and
that it misapplied and misinterpreted Community case-law on
the contestability of manifestly illegal measures.

Finally, it is submitted that, in concluding that any disputes as
to the Commission’s competence to commence proceedings
in the United States could be determined by the US District
Court, the Court of First Instance adopted a solution that was
contrary to Article 292 and the system of the Treaties.

( 1) OJ C 79, 10.3.2001, p. 23.
( 2) OJ C 79, 10.3.2001, p. 24.
( 3) OJ C 3, 5.1.2002, p. 39.
( 4) OJ C 3, 5.1.2002, p. 45.

Reference for a preliminary ruling by the Giudice di Pace
of Genoa-Voltri by order of that Court of 10 March 2003
in the case of Viacom Outdoor S.r.l. against Société
GIOTTO Immobilier S.a.r.l.

(Case C-134/03)

(2003/C 146/38)

Justice of the
Reference has been made to the Court of
European Communities by order of the Giudice di Pace
(Magistrate) of Genoa-Voltri of 10 March 2003, received at the
Court Registry on 25 March 2003, for a preliminary ruling in
the case of Viacom Outdoor S.r.l. against Société GIOTTO
Immobilier S.a.r.l. on the following questions:

1.

Is the entrusting to a public undertaking (municipalities)
of the management of a tax and duties such as those
described above, on a market which constitutes a substan-
tial part of the common market and on which the public
undertaking holds a dominant position inconsistent with:

a)

b)

the application of Article 86 EC in conjunction with
Article 82 EC;

the application of Article 86 EC in conjunction with
Article 49 EC.

2.

Is the payment to that public undertaking of the income
from the tax and charges in question inconsistent with:

a)

b)

the application of Article 86 EC in conjunction with
Article 82 EC;

the application of Articles 87 EC and 88 EC, as
unlawful State aid (not notified) and incompatible
with the common market.