Case C-429/03: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Massa e Carrara — Sezione III — by order of that Court of 21 July 2003 in the case brought by Duegi Trasporti S.r.l. against Comune di Carrara
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Italy, customs duties, earths and stones, export tax, interpretation of the law, intra-EU trade, trade restriction

24.1.2004

EN

Official Journal of the European Union

C 21/11

Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Massa e Carrara — Sezione III —
by order of that Court of 21 July 2003 in the case brought
by Roberto Lorenzoni against 1) Comune di Carrara, and
2) Bipielle Riscossoni S.p.a.

(Case C-428/03)

(2004/C 21/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria Provinciale di Massa e Carrara — Sezione III — (Provincial
Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
received at the Court Registry on 7 October 2003, for a
preliminary ruling in the case brought by Roberto Lorenzoni
against 1) Comune di Carrara, and 2) Bipielle Riscossoni S.p.a.
on the following questions:

(A) Does a tax,

levied by a municipal authority in one
Member State on goods exported to another Member
State on account of their leaving a municipality in the
first Member State, constitute a charge having equivalent
effect to customs duties on exports, even though that
fiscal charge also applies to goods leaving that munici-
pality for another part of that Member State?

(B) Are the legislative provisions by virtue of which that tax
is levied compatible with Community law? In particular,
is the provision laid down in the Law of the Italian State
No 749 of 15 July 1911 (as subsequently amended and
supplemented) by virtue of which the Comune di Carrara
imposes and levies a tax on marble (and derivatives)
excavated in its territory and transported out of it (the ‘tax
on marble’) compatible with, or contrary to, Article 23
(ex Article 9) of the Treaty establishing the European
Communities, which provides that ‘[t]he Community
shall be based upon a customs union which shall cover
all trade in goods and which shall involve the prohibition
between Member States of customs duties on imports
and exports and of all charges having equivalent effect’,
and Article 25 (ex Article 12), which provides that
‘[c]ustoms duties on imports and exports and charges
having equivalent effect shall be prohibited between
Member States. This prohibition shall also apply to
customs duties of a fiscal nature’?

(C)

(D)

Is this tax on marble compatible with Articles 81 EC to
89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
Treaty), which lay down a series of rules intended to
create a system which will ensure that competition on
the common market is not distorted and which will
remove subsisting impediments in order to attain that
objective?

If the answer to the previous question is ‘No’ — having
regard to the fact that, in respect of the municipality in
which the tax on marble (and derivatives) is levied the
Treaty provides no special measures in favour of the
Italian Republic — is it compatible with Community law
for a legislative provision to impose a pecuniary charge

(the ‘tax on marble’) on goods transported out of one
municipality and intended for other regions of the same
State, or does not that particular charge instead involve
less favourable treatment of goods intended for those
regions in comparison with goods exported in other
Member States, and does not
this pecuniary charge
constitute an impediment to free movement of goods
throughout the European market?

Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Massa e Carrara — Sezione III —
by order of that Court of 21 July 2003 in the case brought
by Duegi Trasporti S.r.l. against Comune di Carrara

(Case C-429/03)

(2004/C 21/19)

Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria Provinciale di Massa e Carrara — Sezione III — (Provincial
Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
received at the Court Registry on 7 October 2003, for a
preliminary ruling in the case brought by Duegi Trasporti S.r.l.
against Comune di Carrara on the following questions:

(A) Does a tax,

levied by a municipal authority in one
Member State on goods exported to another Member
State on account of their leaving a municipality in the
first Member State, constitute a charge having equivalent
effect to customs duties on exports, even though that
fiscal charge also applies to goods leaving that munici-
pality for another part of that Member State?

(B) Are the legislative provisions by virtue of which that tax
is levied compatible with Community law? In particular,
is the provision laid down in the Law of the Italian State
No 749 of 15 July 1911 (as subsequently amended and
supplemented) by virtue of which the Comune di Carrara
imposes and levies a tax on marble (and derivatives)
excavated in its territory and transported out of it (the ‘tax
on marble’) compatible with, or contrary to, Article 23
(ex Article 9) of the Treaty establishing the European
Communities, which provides that ‘[t]he Community
shall be based upon a customs union which shall cover
all trade in goods and which shall involve the prohibition
between Member States of customs duties on imports
and exports and of all charges having equivalent effect’,
and Article 25 (ex Article 12), which provides that
‘[c]ustoms duties on imports and exports and charges
having equivalent effect shall be prohibited between
Member States. This prohibition shall also apply to
customs duties of a fiscal nature’?

C 21/12

EN

Official Journal of the European Union

24.1.2004

(C)

(D)

Is this tax on marble compatible with Articles 81 EC to
89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
Treaty), which lay down a series of rules intended to
create a system which will ensure that competition on
the common market is not distorted and which will
remove subsisting impediments in order to attain that
objective?

If the answer to the previous question is ‘No’ — having
regard to the fact that, in respect of the municipality in
which the tax on marble (and derivatives) is levied the
Treaty provides no special measures in favour of the
Italian Republic — is it compatible with Community law
for a legislative provision to impose a pecuniary charge
(the ‘tax on marble’) on goods transported out of one
municipality and intended for other regions of the same
State, or does not that particular charge instead involve
less favourable treatment of goods intended for those
regions in comparison with goods exported in other
Member States, and does not
this pecuniary charge
constitute an impediment to free movement of goods
throughout the European market?

In particular:

1. Are only ‘traditional’ homeopathic medicinal products
subject to the special, simplified registration procedure
under Article 14 et seq. of Directive 2001/83/EC?

2.

If the answer to this question is in the affirmative, can a
medicinal product also be considered ‘traditional’ if it is
manufactured using bibliographically identified homeo-
pathic stocks without having been in actual homeopathic
use in that combination prior to the registration applied
for;

or:

Does the second indent of
the second sentence of
Article 15 of Directive 2001/83/EC permit a Member
State to require that, for registration of a homeopathic
medicinal product that is manufactured using a number
of homeopathic stocks, a bibliography must be produced
that refers to the combination preparation as such?

(1) OJ L 311, p. 67.

Reference for a preliminary ruling by the Verwaltungsge-
richt Berlin by order of that Court of 28 August 2003 in
the case of meta Fackler KG against Federal Republic of
Germany

(Case C-444/03)

(2004/C 21/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Berlin (Administrative Court Berlin) of 28 August 2003,
received at the Court Registry on 21 October 2003, for a
preliminary ruling in the case of meta Fackler KG against
Federal Republic of Germany on the following questions:

Reference for a preliminary ruling by the Bundesverga-
beamt (Wien) by order of that Court of 27 October 2003
in the case of STRABAG AG against Österreichische
Bundesbahnen

(Case C-462/03)

(2004/C 21/21)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Wien) (Federal Procurement Office, Vienna) of 27 October
2003, received at the Court Registry on 4 November 2003,
for a preliminary ruling in the case of STRABAG AG against
Österreichische Bundesbahnen on the following questions:

1.

Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
preted as meaning that, contrary to the other factual
situations covered by Article 2(2) of the Directive, in the
area of transport ‘merely’ the operation of networks is to
be considered a sectoral activity?

Is the rule contained in Paragraph 39(2) No 7a of
the
Arzneimittelgesetz (Law on Medicinal Products, ‘AMG’) com-
patible with Directive 2001/83/EC of the European Parliament
and of the Council of 6 November 2001 (1) (‘Directive 2001/
83/EC’) in so far as it refuses registration for a medicinal
product composed of bibliographically identified homeopathic
constituents if its ‘administration as a homeopathic medicinal
product is not generally known’?

2. Which activities fall within the scope of ‘the operation of
networks providing a service to the public in the field of
transport by railway’ under Article 2(2)(c) of Directive
93/38/EEC? To what extent are, in particular, measures
in the field of infrastructure to be subsumed under this
heading? To what extent are such measures in the field of
infrastructure to be classified under the heading ‘provision
of networks’?