Case C-439/03: Reference for a preliminary ruling by the Ufficio del guidice di pace de Bitonto by order of that Court of 6 October 2003 in the case of Antonio Cannito against Fondiaria-Sai Ass.ni.
Date: 2004-02-21
Institutions: Court of Justice
Subjects: Italy, competition law, infringement of EU law, interpretation of the law, restrictive trade practice

21.2.2004

EN

Official Journal of the European Union

C 47/13

(b) does that apply notwithstanding an opinion as
mentioned above on the basis that where the
plaintiff proves or even where the plaintiff substan-
tiates that in the filling of the post the applicant
preferred to the plaintiff was less well-qualified than
the plaintiff the rule of evidence under this directive
comes into effect

(c)

and on the basis that proof to the contrary may only
be regarded as conclusive if it leads to the factual
finding that the candidate appointed was better
suited or that in actual fact a non-gender-related
reason was the decisive factor in the appointment of
a less well-suited candidate?

(1) OJ 1976 L 39, p. 40.
(2) OJ 1997 L 14, p. 6.

4. Does Community law also require the payment of

damages for non-material loss?

5. As a matter of Community law, is the national court
required of its own motion to order the payment of
punitive damages or damages for non-material loss?

6.

Is the limitation period of one year for bringing an action
for damages for breach of Articles 81 and 82 EC under
Italian law too short and therefore in conflict with
Community law?

7. As a matter of Community law, for the purposes of the
limitation period for bringing an action for damages,
does time begin to run from the day on which the
infringement of Articles 81 and 82 EC was committed or
the day on which that infringement came to an end?

8. Does Community law require national courts to disapply
national rules in conflict with Community law or rather
to interpret them so as to comply with Community law?

Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
Fondiaria-Sai Ass.ni.

(Case C-438/03)

(2004/C 47/21)

Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
Fondiaria-Sai Ass.ni.

Reference has been made to the Court of Justice of the
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:

1. Do the facts as found in Judgment No 2199 of the
Consiglio di Stato (Council of State) of 23 April 2002 and
in Judgment No 6139 of the Tribunale Amministrativo
Regionale (Regional Administrative Court) Lazio (Rome)
of 5 July 2001, which are deemed to be set out here in
full, constitute infringements of Community law,
in
particular of Articles 81 and 82 EC?

2. Does an infringement of Articles 81 and 82 EC imply an
obligation on the part of the person committing it to
compensate end users, and all those who demonstrate
that they have suffered any injury, for damage suffered?

3.

In assessing the amount of damages, in addition to the
restitution of sums charged in breach of Community
rules, is the national court required (again as a matter of
Community law) to award the injured party a sum by way
of punitive damages against those persons responsible
for the prohibited agreement or abuse of a dominant
position?

(Case C-439/03)

(2004/C 47/22)

Reference has been made to the Court of Justice of the
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:

1. Do the facts as found in Judgment No 2199 of the
Consiglio di Stato (Council of State) of 23 April 2002 and
in Judgment No 6139 of the Tribunale Amministrativo
Regionale (Regional Administrative Court) Lazio (Rome)
of 5 July 2001, which are deemed to be set out here in
full, constitute infringements of Community law,
in
particular of Articles 81 and 82 EC?

2. Does an infringement of Articles 81 and 82 EC imply an
obligation on the part of the person committing it to
compensate end users, and all those who demonstrate
that they have suffered any injury, for damage suffered?

C 47/14

EN

Official Journal of the European Union

21.2.2004

3.

In assessing the amount of damages, in addition to the
restitution of sums charged in breach of Community
rules, is the national court required (again as a matter of
Community law) to award the injured party a sum by way
of punitive damages against those persons responsible
for the prohibited agreement or abuse of a dominant
position?

4. Does Community law also require the payment of

damages for non-material loss?

5. As a matter of Community law, is the national court
required of its own motion to order the payment of
punitive damages or damages for non-material loss?

2.

3.

If the first question is answered in the affirmative: are
Article 2(1) and Article 17 of the Sixth Directive to be
interpreted as meaning that all services obtained in
connection with a listing on the stock market are to be
attributed to an exempt supply and that for that reason
there is no right to a deduction of input tax?

If the first question is answered in the negative: is there a
right under Article 17(1) and (2) of the Sixth Directive to
deduct input tax on the ground that the services in respect
of which a deduction of input tax is claimed (advertising,
agent’s fees, and legal and technical advice) are used for
the purposes of the undertaking’s taxable transactions?

6.

Is the limitation period of one year for bringing an action
for damages for breach of Articles 81 and 82 EC under
Italian law too short and therefore in conflict with
Community law?

(1) OJ L 145, p. 1.

7. As a matter of Community law, for the purposes of the
limitation period for bringing an action for damages,
does time begin to run from the day on which the
infringement of Articles 81 and 82 EC was committed or
the day on which that infringement came to an end?

8. Does Community law require national courts to disapply
national rules in conflict with Community law or rather
to interpret them so as to comply with Community law?

Reference for a preliminary ruling by the Unabhängigen
Finanzsenats der Außenstelle Linz by order of that Court
of 20 October 2003 in the case of Kretztechnik AG
against Finanzamt Linz

(Case C-465/03)

(2004/C 47/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängigen Fi-
nanzsenats der Außenstelle Linz of 20 October 2003, received
at the Court Registry on 5 November 2003, for a preliminary
ruling in the case of Kretztechnik AG against Finanzamt Linz
on the following questions:

1.

In becoming listed on a stock market and in issuing
shares in that connection to new shareholders in return
for the issue price, does a public limited company
make a supply for consideration within the meaning of
Article 2(1) of Sixth Council Directive 77/388/EEC 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? (1)

Reference for a preliminary ruling by the Hessischen
Verwaltungsgerichtshofes by order of that Court of
1 October 2003 in the case of Volkswirt Weinschänken
GmbH against Stadt Frankfurt am Main

(Case C-491/03)

(2004/C 47/24)

Reference has been made to the Court of Justice of the
European Communities by order of the Hessischen Verwal-
tungsgerichtshofes of 1 October 2003, received at the Court
Registry on 20 November 2003, for a preliminary ruling in
the case of Volkswirt Weinschänken GmbH against Stadt
Frankfurt am Main on the following questions:

1. A local beverage duty bye-law defines as the subject-
matter of that duty ‘the sale of alcoholic beverages for
immediate consumption’, and as such a sale ‘any sale for
consumption on the premises’.
Is this duty another
indirect tax on products subject to excise duty for the
purposes of Article 3(1) and (2) of Council Directive
92/12/EEC (1) of 25 February 1992 on the general
arrangements for products subject to excise duty and on
the holding, movement and monitoring of such products,
or is it a tax on the supply of services relating to products
subject to excise duty, within the meaning of the second
subparagraph of Article 3(3) of Directive 92/12/EEC?