Case C-447/03: Action brought on 22 October 2003 by the Commission of the European Communities against the Italian Republic
Date: 2004-01-10
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, waste disposal, waste management

10.1.2004

EN

Official Journal of the European Union

C 7/19

Pleas in law and main arguments

The Appellant’s application to the Court of First Instance was
dismissed on the basis that aid granted to the Appellant in
1995 was a continuation of aid which had previously been
granted to the Appellant in 1992 unlawfully (without prior
notification to the Commission);
the 1995 aid was
effectively tainted by the unlawfulness of the earlier aid; and
that the unlawfulness was not cured by the provision in 1995
of the information about the 1995 agreement The Appellant
submits that the Court of First Instance was wrong in law to
dismiss its application for the following reasons:

that

The Court of First Instance misconstrued Article 88(3) EC,
failing to give effect to the principle that the obligation to
inform the Commission of plans to alter aid is a discrete
obligation no less than is the obligation to inform the
Commission of plans to grant (new) aid. Even where aid was
originally granted unlawfully, altered aid granted under an
agreement that replaces the original agreement will be granted
lawfully if the Commission is informed of the plans to grant
the altered aid and takes a favourable decision with regard to
it before the altered aid is granted.

The Court of First Instance erroneously supported its con-
clusion summarised at paragraph 1 above by finding that the
substance of the aid did not differ between the 1992 and 1995
agreements, and that the 1995 aid was therefore tainted by the
unlawfulness of the 1992 aid.

The Court of First Instance failed to recognise that the letter of
27 March 1995 providing information to the Commission
about the 1995 agreement was capable in law of having, and
the 1992
did have, a two-fold character:
agreement as having been replaced and it
informed the
Commission of the finalised plan to grant new aid by way of
replacement of the 1992 aid; the Court of First Instance erred
in law in supposing that the first aspect of the letter excluded
the second.

it disposed of

The Court of First Instance relied on alleged procedural failings
in the provision of
information by way of the letter of
27 March 1995. The Court of First Instance erred in so doing
since: (a) contrary to the Court of First Instance’s judgment,
there is no requirement laid down by Article 88(3), and there
was none in law at the time of the notification, that the
relevant information must be supplied by the Member State in
question; (b) the Court of First Instance relied on the fact that
the form and content of the notification did not satisfy the
formal criteria laid down by the Commission in communi-
cations to Member States, overlooking the fact that communi-
cations from the Commission to Member States cannot create
legal requirements that are binding on individuals; and, in any

event, (c) in the circumstances, the Commission was stopped
from denying that the notification was lawful by reason of
some formal defect and the Court of First Instance erred in law
in failing to hold that that was so.

The Court of First Instance erroneously relied on (a) the
reference (‘NN’) used by the Commission in relation to the
1995 aid and (b) the fact that the Commission did not reject
the letter of 27 March 1995 (which, by circular reasoning, the
Court of First Instance said that it would have done, if it had
understood the letter to be a notification) as showing that the
1995 aid had not been duly notified to the Commission.
Neither of those facts was capable in law of depriving the letter
of 27 March 1995 of its character as a notification of the plan
to grant the 1995 aid.

(1) OJ C 212, 28.07.2001, p. 26.
(2) OJ C 227, 11.08.2001, p. 29.

Action brought on 22 October 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-447/03)

(2004/C 7/32)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 October
2003 by the Commission of the European Communities,
represented by Minas Kostantinidis and Roberto Amorosi,
acting as Agents.

The applicant claims that the Court should:

— declare that, by failing to bring into force the necessary
measures to ensure that waste, stored and deposited in
dumps on Enichem’s former Manfredonia site (province
of Foggia) and in the Pariti I dump (province of Manfre-
donia) is recovered or disposed of without endangering
human health and without using processes or methods
which could harm the environment, and by failing to
bring into force the necessary measures to ensure that the
holder of the waste stored and deposited in dumps on
Enichem’s Manfredonia site and the holder of urban waste
in the Pariti I and Conte di Troia dumps has it handled by
a private or public waste collector or by an undertaking

C 7/20

EN

Official Journal of the European Union

10.1.2004

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?