Case C-426/03: 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 of GE.M.E.G. S.r.l. against 1) Comune di Carrara and 2) Cerit S.p.A.
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 21/9

Reference for a preliminary ruling by the Verwaltungsge-
richt Freiburg by order of that Court of 12 March 2003 in
the administrative law case of Ceyhun Aydinli versus
Land Baden-Württemberg, represented by the Regie-
rungspräsidium Freiburg

(Case C-373/03)

(2004/C 21/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Freiburg (Administrative Court, Freiburg) of 12 March 2003,
received at the Court Registry on 5 September 2003, for a
preliminary ruling in the administrative law case of Ceyhun
Aydinli versus Land Baden-Württemberg, represented by the
Regierungspräsidium Freiburg on the following questions:

1.

labour force,

Can the fact that a Turkish worker is not duly registered
as belonging to the labour force due to enforcement of a
fixed-term prison sentence cause him to have ceased to
belong to that
thereby leading to the
forfeiture of rights that he has acquired under the third
indent of Article 6(1) of Decision No 1/80 of
the
Association Council of 19 September 1980 on the
development of the Association (hereinafter ‘Decision
No 1/80’) as a result of his many years of employment in
the Member State?

2. Where applicable, how is the duration of an absence from
the labour force due to enforcement of a prison sentence,
which leads to forfeiture of rights, to be determined?

3. When determining that duration can account also be
taken of the period during which the Turkish worker was
absent as a result of detention pending trial under a court
order immediately preceding enforcement of the prison
sentence?

4. When determining that duration can account also be
taken of the fact that, at the time that the expulsion order
is made, the claimant is expected to remain absent from
the labour force for some time because, if expulsion is
not ordered, he can in all probability — in deferring
enforcement of the prison sentence — commence long-
term drug therapy aimed at his social and occupational
rehabilitation for which there are sufficient prospects of
success?

5.

In order for a member of the family of a Turkish worker
to forfeit his legal status under the second indent of the
first sentence of Article 7 of Decision No 1/80 is it
necessary for that member of the family to have ceased
living as a family with the Turkish worker from whom
he originally derived his right of residence and also for
that member of the family to have definitively ceased to
be duly registered as belonging to the labour force of the
Member State in which they are both living?

6.

7.

Should ceasing to live as a family with a person generally
be deemed to occur for this purpose where the Turkish
worker’s adult child moves out of the Turkish worker’s
home on a permanent basis and neither the child nor the
Turkish worker continues to require particular closeness
or care?

Should ceasing to belong to the labour force,
in the
context of the legal status of a member of the family of a
Turkish worker under the second indent of the first
sentence of Article 7, be determined by reference to
criteria the same as those applicable to the forfeiture of
rights under the third indent of Article 6(1)?

8. Does the child of a Turkish worker who has completed a
course of vocational training in the host country forfeit
his right under the second sentence of Article 7 of
Decision No 1/80 to respond to any offer of employment
in that Member State if he has already entered the labour
force there by taking up permanent employment?

9.

Is that right under the second sentence of Article 7 of
Decision No 1/80 forfeited if a person with that right has
ceased to be duly registered as belonging to the labour
force of that Member State in a way that would lead to
the loss of a Turkish worker’s legal status under the third
indent of Article 6(1)?

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 of
GE.M.E.G. S.r.l. against 1) Comune di Carrara and 2) Cerit
S.p.A.

(Case C-426/03)

(2004/C 21/16)

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 of GE.M.E.G. S.r.l. against
1) Comune di Carrara and 2) Cerit 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?

C 21/10

EN

Official Journal of the European Union

24.1.2004

(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 of
OMYA S.p.a. against Comune di Carrara

(Case C-427/03)

(2004/C 21/17)

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 of OMYA S.p.a. 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)

(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?