Case C-197/03: Action brought on 12 May 2003 by the Commission of the European Communities against the Italian Republic
Date: 2003-07-19
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, company with share capital, indirect tax, redemption, tax harmonisation

C 171/12

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Official Journal of the European Union

19.7.2003

to asbestos has resulted in psychological and physical stress;
that damage may be assumed to exist on the basis of
information concerning environmental pollution and may
certainly be described as biological and life-threatening dam-
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who
fearfully expected to suffer from cancer, that is to say, to die.

Action brought on 12 May 2003 by the Commission of
the European Communities against the Italian Republic

(Case C-197/03)

(2003/C 171/17)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 May
2003 by the Commission of the European Communities,
represented by Enrico Traversa, acting as Agent.

The applicant claims that the Court should:

— declare that, by introducing with retroactive effect under
Article 11 of Law No 448/98, an annual flat-rate charge
on the registration of company documents other than the
instrument of incorporation and by providing for rules
relating to reimbursement of the repealed administrative
charge on registration of the instrument of incorporation
which are discriminatory and restrictive as against com-
panies entitled to that reimbursement, the Italian Republic
has
imposed on it by
Article 10(c) of Council Directive 69/335/EEC (1) con-
cerning indirect taxes on the raising of capital and the
principles laid down by the Court of Justice concerning
recovery of charges levied by the Member States in breach
of Community law;

infringed the obligations

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

(a) The annual retroactive flat-rate charge on registration
of company documents other than the instrument of
incorporation

a renumerative nature, inasmuch as the Italian tax authorities
already levied on registration of such company documents in
the years 1985 to 1992 ‘analogous charges which may be
regarded as constituting renumeration for the service provided’.

Italian authorities,

The
contrary to the provisions of
Article 11(2) of Law No 448/98, are obliged to reimburse in
full to the capital companies who have sought recovery within
the periods laid down, the amount of the administrative charge
on registration of the instrument of incorporation declared
invalid by the Court in Joined Cases C-71/91 and C-178/91
Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
and are not at liberty to reduce that amount by a sum equal to
eight times the retroactive annual flat-rate charge provided for
in Article 11(1) of Law No 448/98. The introduction of that
retroactive annual flat-rate charge constitutes a flagrant breach
of the prohibition in Article 10 of Directive 69/335.

(b) The detailed rules for calculating interest on the

amounts to be repaid to the companies

The Commission points out that the detailed rules for calculat-
ing interest on refunds of
the administrative charge on
incorporation
registration of a company’s instrument of
provided for in Article 11(3) of Law No 448/98 concern only
a specific category of actions for restitution, namely those
based on an infringement of Article 10 of Directive 69/335,
that is to say a breach of a provision of Community law. Since
those detailed rules for calculating interest are manifestly less
favourable in contrast to those applicable in the case of
analogous actions based on national
law, the Commission
concludes that Article 11(3) of Law No 448/98 constitutes an
infringement of the principle of equivalence upheld by the
Court.

(c) Detailed rules for reimbursement of the repealed admin-
istrative charge on registration of the instrument of
incorporation

In the Commission’s view, the requirements contained in
Article 11(4) and (5) of Law No 448/98 and in implementing
circular No 32/E providing for a commencement date for
reimbursement procedures, introducing an annual ceiling of
amounts earmarked for reimbursement and suspending the
reimbursements themselves in cases where proceedings at first
instance are still pending, occasion, or are likely to occasion,
delays in repayment of the repealed charge on registration of
a company’s instrument of incorporation. This deferral of
reimbursements and the consequent extension of the duration
of judicial proceedings for recovery of the registration charge
quite plainly renders excessively difficult the exercise of a right
conferred by the Community legal order and, more specifically,
the right of capital companies to be subject, on incorporation,
only to the harmonised tax on contributions and to seek
recovery of other non-harmonised indirect taxes prohibited
under Article 10 of Directive 69/335.

The Commission maintains that the retroactive flat-rate charge
on registration of company documents other than the instru-
ment of incorporation cannot in any way be deemed to be of

The Commission concludes that the Italian legislature, by
introducing restrictive rules on reimbursement provided for in
Article 11(4) and (5) of Law No 448/98, has at one and the

19.7.2003

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Official Journal of the European Union

C 171/13

same time infringed all three principles upheld by the Court in
regard to the recovery of charges levied by the Member States
in breach of Community law, that is to say not only the
principle of equivalence and the maintenance of the effects of
judgments of the Court declaring a charge incompatible with
Community law but also the principle of effectiveness.

which requires all the Member States to introduce into their
respective national systems review procedures full available to
those who intend to seek reparation of damage suffered or
who in any event fear that they may suffer harm as a result of
a decision taken by the tenders committee for the award of a
public procurement contract?

( 1) OJ English Special Edition 1969 II, p. 412.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale per la Lombardia — Sezione
Staccata di Brescia by order of that Court of 24 April
2003 in the case of Società DAC S.p.A. against Azienda
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
Pellegrini S.p.A

(Case C-202/03)

(2003/C 171/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on
13 May 2003,
for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:

Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal
order in respect of rights recognised in disputes between
private persons or in disputes between the latter and the public
authorities over which the ordinary courts have jurisdiction,
contrary to the principle of cooperation enshrined in
Article 10 EC, which,
in the absence of any harmonised
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national
law, rather than relief which is purely
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?

Furthermore,
in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order
restraining the authorities forthwith from concluding the
contract at the end of a. tendering procedure, quite irrespective
of whether or not an action challenging an act
in that
procedure has already been brought, does Article 21 of Law
No 1034 of 6 December 1971, as amended by Law No 205
of 21 July 2000, constitute sufficient implementation of
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,

Does that interim relief which may be granted by the national
administrative courts constitute infringement of Article 2(1)(a)
of the Directive, which requires the Member States to take at
the earliest opportunity and by way of interlocutory pro-
cedures,
interim measures with the aim of correcting the
alleged infringement or preventing further damage to the
interests concerned,
including measures to suspend or to
ensure the suspension of the procedure for the award of a
public contract or the implementation of any decision taken
by the contracting authority?

Finally, does that form of interim relief also constitute breach
of Article 6(2) TEU which, in providing that the Union must
respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Funda-
mental Freedoms, has adopted the principle laid down in
Articles 6 and 13 of that Convention that judicial protection
must be effective, requiring the Member States to guarantee
that full effectiveness in their respective national legal systems?

(1) OJ L 395, 30.12.1989, p. 33.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
12 February 2003, in the case of The Queen on the
application of Dany Bidar against 1) London Borough of
Ealing 2) Secretary of State for Education

(Case C-209/03)

(2003/C 171/19)

Justice of the
Reference has been made to the Court of
the High Court
European Communities by an order of
of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court), dated 12 February 2003, which was
received at the Court Registry on 15 May 2003,
for a
preliminary ruling in the case of The Queen on the application
of Dany Bidar against 1) London Borough of Ealing 2) Secretary
of State for Education on the following questions: