Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-185/00: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directives 92/81/EEC and 92/82/EEC — Rates of excise duties on mineral oils — Fiscal control — Use of gas oil as motor fuel)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, Finland, action for failure to fulfil an obligation, excise duty, fuel oil, tax harmonisation

C 21/2

EN

Official Journal of the European Union

24.1.2004

Third Chamber

— Mr Schintgen

— Ms Colneric

— Sir Konrad Schiemann

JUDGMENT OF THE COURT

of 9 December 2003

in Case C-129/00: Commission of the European Communi-
ties v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Construc-
tion contrary to Community law of national legislation by
case-law and administrative practice — Conditions for the
recovery of sums paid though not due)

(2004/C 21/04)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-129/00, Commission of the European Communities
(Agent: E. Traversa, assisted by P. Biavati) v Italian Republic
(Agent: I. M. Braguglia): Application for a declaration that, by
maintaining in force Article 29(2) of Law No 428 of 29 Decem-
ber 1990 entitled ‘Disposizioni per l’adempimento di obblighi
derivanti dall’appartenenza dell’Italia alle Comunità europee
(legge comunitaria per il 1990)’ (Provisions for the fulfilment of
obligations deriving from Italy’s membership of the European
Communities (Community law for 1990) (GURI, Ordinary
Supplement No 10 of 12 January 1991, p. 5) which, as
construed and applied by the administrative authorities and
the courts, allows rules of evidence in relation to the passing
on to third parties of the amount of charges levied in breach
of Community rules which make exercise of the right to
repayment of such charges virtually impossible or, at least,
excessively difficult for the taxpayer, the Italian Republic has
failed to fulfil its obligations under the EC Treaty, the Court,
composed of: V. Skouris, President, P. Jann, C. W. A. Timmer-
mans, C. Gulmann, J. N. Cunha Rodrigues and A. Rosas,
(Presidents of Chambers), D. A. O. Edward, A. La Pergola,
J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken, N. Col-
neric and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrarm, has
given a judgment on 9 December 2003, in which it:

1. Declares that, by failing to amend Article 29(2) of Law
No 428 of 29 December 1990 entitled ‘Disposizioni per
l’adempimento di obblighi derivanti dall’appartenenza dell’Italia
alle Comunità europee (legge comunitaria per
il 1990)’
(Provisions for the fulfilment of obligations deriving from Italy’s

membership of the European Communities (Community law for
1990), which is construed and applied by the administrative
authorities and a substantial proportion of the courts, including
the Corte suprema di cassazione (Italy), in such a way that the
exercise of the right to repayment of charges levied in breach of
Community rules is made excessively difficult for the taxpayer,
the Italian Republic has failed to fulfil its obligations under the
EC Treaty;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 163 of 10.6.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 November 2003

in Case C-185/00: Commission of the European Communi-
ties v Republic of Finland (1)

its obligations —
(Failure of a Member State to fulfil
Directives 92/81/EEC and 92/82/EEC — Rates of excise
duties on mineral oils — Fiscal control — Use of gas oil as
motor fuel)

(2004/C 21/05)

(Language of the case: Finnish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-185/00, Commission of the European Communities
(Agents: E. Traversa and I. Koskinen) with an address for
service in Luxembourg, supported by Kingdom of Sweden
(Agents: I. Simfors and A. Kruse) v Republic of Finland (Agents:
T. Pynnä and E. Bygglin) with an address for service in
Luxembourg: Application for a declaration that, by main-
taining in force the laws and regulations on the use of gas oil
as a motor fuel, as they are applied in practice, the Republic of
Finland has failed to fulfil its obligations under Article 8(2) and
(3) of Council Directive 92/81/EEC of 19 October 1992 on
the harmonisation of the structures of excise duties on mineral
oils (OJ 1992 L 316, p. 12) and Article 5(1) of Council Directive
92/82/EEC of 19 October 1992 on the approximation of
the rates of excise duties on mineral oils (OJ 1992 L 316,
p. 19), the Court (Sixth Chamber), composed of: V. Skouris
(Rapporteur),
Puissochet,
F. Macken and N. Colneric, Judges; L.A. Geelhoed, Advocate
General; H. von Holstein, Deputy Registrar, has given a
judgment on 27 November 2003, in which it:

President, C. Gulmann,

J.-P.

1. Declares that by maintaining in force the laws and regulations
on the use of gas oil as a fuel, as they are applied in practice,
the Republic of Finland has failed to fulfil its obligations under

24.1.2004

EN

Official Journal of the European Union

C 21/3

Article 8(2) and (3) of Council Directive 92/81/EEC of
19 October 1992 on the harmonisation of the structures of
excise duties on mineral oils, and Article 5(1) of Council
Directive 92/82/EEC of 19 October 1992 on the approxi-
mation of the rates of excise duties on mineral oils;

C. W. A. Timmermans, A. Rosas, D. A. O. Edward and S. von
Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
H. von Holstein, Deputy Registrar, has given a judgment on
27 November 2003, in which it has ruled:

2. Orders the Republic of Finland to pay the costs;

3. Orders the Kingdom of Sweden to bear its own costs.

(1) OJ C 247 of 26.8.2000.

1. A measure by which a Member State allocates to a public
undertaking a significant proportion of charges, such as the
port charges at issue in the main proceedings, must be classified
as State aid within the meaning of Article 92(1) of the EC
Treaty (now, after amendment, Article 87(1) EC), in so far as
it affects trade between Member States, if:

— the allocation of the charges is not linked to clearly defined

public-service duties, and/or

— the compensation allegedly necessary in order for those
duties to be performed has not been calculated on the
basis of parameters established in advance in an objective
and transparent manner, so as to prevent that compen-
sation from conferring an economic advantage which
might favour the recipient undertaking over competing
undertakings.

Not only the allocation of a proportion of the charges to a
public undertaking, but also the collection from users of the
proportion corresponding to the amount so allocated, may
constitute State aid incompatible with the common market. If
the aid has not been notified, it is for the national court to take
all measures necessary, under its national law, to prevent both
the allocation of a proportion of the charges to the recipient
undertakings and the collection of
the
charges;

that proportion of

The fact that the collection and allocation of a proportion of the
charges may be unlawful concerns only that proportion of the
charges paid to the public undertaking in question and does not
affect the charges as a whole.

2.

Charges, such as the port charges at
issue in the main
proceedings, constitute internal taxation within the meaning of
Article 95 of the EC Treaty (now, after amendment, Article 90
EC) not falling within the ambit of Article 12 or Article 30 of
the EC Treaty (now, after amendment, Articles 25 EC and 28
EC). In the absence of any unequal treatment discriminating
against goods from other Member States, the measure by virtue
of which a Member State provides for the collection of those
charges and the allocation of a significant proportion thereof to
a public undertaking, when the sum so allocated corresponds to
a service actually provided by that undertaking, does not infringe
Article 95.

(1) OJ C 79 of 10.3.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 November 2003

In Joined Cases C-34/01 to C-38/01 (Reference for a
preliminary ruling from the Corte Suprema di Cassa-
zione): Enirisorse SpA v Ministero delle Finanze (1)

(Public undertakings — Transfer to public undertakings of
a proportion of port charges paid to the State — Competition
— Abuse of a dominant position — State aid — Charge
having equivalent effect — Internal taxation — Free move-
ment of goods)

(2004/C 21/06)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-34/01 to C-38/01: Reference to the Court
under Article 234 EC by the Corte Suprema di Cassazione
(Italy) for a preliminary ruling in the proceedings pending
before that court between Enirisorse SpA and Ministero delle
Finanze, on the interpretation of Article 12 of the EC Treaty
(now, after amendment, Article 25 EC), Article 13 of the EC
Treaty (repealed by the Treaty of Amsterdam), Article 30 of
the EC Treaty (now, after amendment, Article 28 EC),
Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
86 EC), Article 92 of the EC Treaty (now, after amendment,
Article 87 EC), Article 93 of the EC Treaty (now Article 88 EC)
and Article 95 of the EC Treaty (now, after amendment,
Article 90 EC), the Court (Fifth Chamber), composed of:
the Fifth Chamber,
P.

Jann, acting for the President of