Case C-451/03: Reference for a preliminary ruling by the Corte d'Appello di Milano — Sezione Prima Civile by order of that Court of 15 October 2003 in the case of Servizi Ausiliari Dottori Commercialisti s.r.l. against Notaio Giuseppe Calafiori; intervener: The Public Prosecutor, in the person of the Attorney General at the Court of Appeal, Milan
Date: 2004-01-10
Institutions: Court of Justice
Subjects: consultancy, interpretation of the law, provision of services, tax system

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Official Journal of the European Union

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which carries out the operations listed in Annex II A or B
or recovers or disposes of it himself, the Italian Republic
has failed to fulfil its obligations under Article 4 and
Article 8 of Directive 75/442/EEC (1), as amended by
Directive 91/156/EEC (2).

out the operations listed in Annex II A or B of the
directive. It has therefore also failed to fulfil its obligations
under Article 8 of that directive.

— order the Italian Republic to pay the costs.

(1) OJ 1975 L 194, p. 39.
(2) OJ 1991 L 78, p. 32.

Pleas in law and main arguments

— As regards the site of the former Enichem industrial plant,
in view of
the information provided by the Italian
authorities and the subsequent prolonged silence maintai-
ned by them, it must be considered that the removal
operations of the waste deposited on Island 5 were not
completed as planned by December 2002; that Enichem
has not submitted, by December 2002, a project for the
decontamination of the waste deposited on Islands 12,
14 and 17 and that it is therefore lying in the same place,
even though it is beyond doubt that it needs to be
removed; that regarding the waste on Island 16 there is
at present only an outline plan still a long way from being
implemented.

— As for the Pariti I and Conte di Troia dumps, the technical
preliminary investigations conducted by the Ministry of
the Environment concerning the plan for the identifi-
cation of the sites in question has not been completed for
October 2002 as planned, and therefore the situation
has remained completely unchanged since the reasoned
opinion was delivered.

— In the light of the foregoing, notwithstanding that the
Conte di Troia dump does not constitute an immediate
risk to the environment, the fact remains that the Italian
Republic has not brought into force any measures to
ensure that the waste lying in the Pariti I dump since
1989 and Enichem’s Manfredonia site since 1993 is
recovered and disposed of without using processes or
methods which could harm the environment.
It has
therefore failed to fulfil its obligations under Article 4 of
the directive.

— The Italian Republic has failed to bring into force the
necessary measures to ensure that the holder of the waste
on Enichem’s Manfredonia site and in the Pariti I and
Conte di Troia dumps has it handled by a public or
private waste collector or by an undertaking which carries

Reference for a preliminary ruling by the Corte d’Appello
di Milano — Sezione Prima Civile by order of that Court
of 15 October 2003 in the case of Servizi Ausiliari Dottori
Commercialisti s.r.l. against Notaio Giuseppe Calafiori;
intervener: The Public Prosecutor, in the person of the
Attorney General at the Court of Appeal, Milan

(Case C-451/03)

(2004/C 7/33)

Reference has been made to the Court of Justice of the
European Communities by order of the Corte d’Appello di
Milano — Sezione Prima Civile (Court of Appeal, Milan —
Civil Section I) of 15 October 2003, received at the Court
Registry on 27 October 2003, for a preliminary ruling in the
case of Servizi Ausiliari Dottori Commercialisti s.r.l. against
Notaio Giuseppe Calafiori; intervener: The Public Prosecutor,
in the person of the Attorney General at the Court of Appeal,
Milan on the following questions:

1. Must Articles 4, 10, 82, 86 and 98 of the EC Treaty be
interpreted as precluding national rules such as those laid
down in Legislative Decree No 241 of 9 July 1997, as
amended by Legislative Decree No 490 of 28 December
1998, read together with the consolidated law on income
tax (Decree of the President of the Republic No 917 of
22 December 1986) and Law No 413 of 30 December
1991, which exclusively reserves the right to provide
certain types of
tax advice to a single category of
operators, namely the Centri di Assistenza Fiscale (or
CAFs), and denies other economic operators in the sector
who are nevertheless professionally qualified to provide
tax and accounting advice (doctors, commercial account-
ants, lawyers and work consultants) the opportunity of
providing, on the same terms and conditions, the type of
advice reserved to the CAFs?

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2. Must Articles 43, 48 and 49 of

the EC Treaty be
interpreted as precluding national rules such as those laid
down in Legislative Decree No 241 of 9 July 1997, as
amended by Legislative Decree No 490 of 28 December
1998, read together with the consolidated law on income
tax (Decree of the President of the Republic No 917 of
22 December 1986) and Law No 413 of 30 December
1991, which exclusively reserves the right to provide
certain types of
tax advice to a single category of
operators, namely the Centri di Assistenza Fiscale (or
CAFs), and denies other economic operators in the sector
who are nevertheless professionally qualified to provide
tax and accounting advice (doctors, commercial account-
ants, lawyers and work consultants) the opportunity of
providing, on the same terms and conditions, the type of
advice reserved to the CAFs?

3. Must Article 87 of the EC Treaty be interpreted as
meaning that a measure such as that arising from the
rules laid down in Legislative Decree No 241 of 9 July
1997, and in particular Article 38 thereof, which provides
for payment to be made to CAFs from State funds in
respect of the activities referred to in Articles 34(4) and
37(2) of that legislative decree, constitute State aid?

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 17 October 2003, in the case of 1) RAL
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
and Excise

(Case C-452/03)

(2004/C 7/34)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003,
for a preliminary ruling in the case of 1) RAL (Channel Islands)
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and
Commissioners of Customs and Excise on the following
questions:

(1)

In the circumstances of the present case and

(2) having regard to the Sixth Council Directive (77/388/
EEC) (1) of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —

common system of value added tax: uniform basis of
assessment, in particular Articles 2, 4, and 9, the Thir-
teenth Council Directive (86/560/EEC) (2) of 17 Novem-
ber 1986 on the harmonisation of the laws of the
Member States relating to turnover taxes — arrangements
for the refund of value added tax to taxable persons
not established in Community territory,
in particular
Articles 1 and 2, and the general principles of Community
law:

1. How is the expression ‘fixed establishment’
Article 9 of the Sixth Directive to be interpreted?

in

2. What are the factors to be considered in determining
whether the supply of slot gaming services is from
the business establishment of a company such as Cl
or from any fixed establishments that a company
such as Cl might possess?

3.

In particular:

a) Where the business of a company (‘A’)

is
structured in circumstances such as those of the
present case so that a connected company (‘B’),
whose business establishment lies outside the
territory of the Community, supplies slot gam-
ing services and the sole purpose of the struc-
ture is to eliminate A’s liability to pay VAT in
the State in which it is established:

(i)

can the slot gaming services be regarded
as supplied from a fixed establishment in
that Member State; and, if so,

(ii)

are the slot gaming services to be deemed
to be supplied from the fixed establish-
ment or are they deemed to be supplied
from the place where B has established its
business?

b) Where the business of a company (‘A’)

is
structured so that, for the purposes of the place
of supply rules, a connected company (‘B’), in
circumstances such as those of the present case,
purports to supply slot gaming services from a
business establishment outside the territory of
the Community and has no fixed establishment,
from which those services are provided, in the
Member State in which A is established and the
sole purpose of the structure is to eliminate A’s
liability to pay VAT in that State on those
services: