Case C-188/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic
Date: 2004-06-26
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, motorway, public contract, road building, works contract

C 168/2

EN

Official Journal of the European Union

26.6.2004

This view is also supported by an examination of the different
language versions of Article 1 of the directive. Apart from the
German and Danish texts, which both use the same term in
Article 1(1) and (2), that is, ‘Abgaben’ and ‘afgifter’, respectively,
all of the other language versions use different terms in Article
1(1) and (2), namely ‘taxes’ et ‘droits’ in French, ‘taxes’ and ‘fees’
in English, etc. It is obvious that the terms ‘droits’ and ‘fees’ can
only refer to fees paid for a service.

It is not possible to consider the registration fee as payment for
a service, since it is calculated on the basis of the value of the
motor
value, up to
DKK 57 400 (corresponding to EUR 7 735) and 180 % of the
residual value of the motor vehicle at the time of registration,
including VAT.

currently 105 % of

vehicle,

the

(1) Council Directive 83/183/EEC of 28 March 1983 on tax exemptions
applicable to permanent
the
personal property of individuals (OJ 1983 L 105, 23 April 1983, p.
64).

imports from a Member State of

Action brought on 16 April 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-179/04)

(2004/C 168/02)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 16 April
2004 by the Commission of the European Communities, repre-
sented by Georgios Zavvos, a member of its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to adopt the necessary laws, regula-
tions and administrative provisions to comply with Direc-
tive 2000/64/EC (1) of the European Parliament and of the
Council of 7 November 2000 amending Directives
85/611/EEC, 92/96/EEC and 93/22/EEC as
regards
exchange of information with third countries, and in any
event by failing to communicate such provisions to the
Commission, the Hellenic Republic has failed to fulfil its
obligations under that Directive.

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

According to the settled case-law of the Court of Justice of the
European Communities, a Member State may not rely on
domestic circumstances or difficulties to justify failure to
comply with its obligations and the time-limits prescribed by
Community law.

(1) OJ L 290 of 17.11.200, p. 27.

Reference for a preliminary ruling by the Simvoulio tis
Epikratias by judgment of that court of 3 March 2004 in
the case of Elmeka N.E. against the Minister for Economic
Affairs

(Case C-181/04)

(2004/C 168/03)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Simvoulio tis Epikratias
(Council of State, Greece) of 3 March 2004, received at the
Court Registry on 19 April 2004, for a preliminary ruling in
the case of Elmeka N.E. against the Minister for Economic
Affairs on the following questions:

(1) Does Article 15(4)(a) of the 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, to which Article 15(5) of that directive refers,
concern the chartering of both vessels used on the high
seas which carry passengers for reward and vessels used for
the purpose of commercial, industrial or fishing activities,
or does it concern the chartering of vessels used on the
high seas alone, when, in the latter case, Article 22(1)(d) of
Law 1642/1986 appears wider than the directive as regards
the category of vessels to which the chartering relates?

(2) For the exemption from tax in accordance with Article
15(8) of the Sixth Directive, is the service required to be
supplied to the vessel owner himself, or is the exemption
granted also in respect of a service supplied to a third
party, subject only to the condition that it meets the direct
needs of the vessels referred to in Article 15(5), that is to
say of the vessels covered by Article 15(4)(a) and (b)?

is it permitted, and subject

(3) Under the Community rules and principles which govern
to what
value added tax,
preconditions,
for tax to be charged for a past period
where the person liable did not pass tax on to the other
contracting party during that period, and, therefore, tax
was not paid to the State, because of the conviction of the
person liable, brought about by conduct of the tax authori-
ties, that he did not have to pass on tax?

Action brought on 22 April 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-188/04)

(2004/C 168/04)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 April
2004 by the Commission of the European Communities, repre-
sented by K. Wiedner and G. Bambara, acting as Agents.

26.6.2004

EN

Official Journal of the European Union

C 168/3

The applicant claims that the Court should:

and the Commissioners of Inland Revenue on the following
question:

— Declare that, since ANAS S.p.A. awarded the concession for
the construction and management of
the ‘Pedemontana
Veneta Ovest’ motorway to the Società per l'autostrada
Brescia-Verona-Vicenza-Padova p.a., by direct concession by
means of a contract signed on 7 December 1999 without
prior publication of a notice, and where the requirements
for such a concession were not met, the Italian Republic
has failed to fulfil its obligations under Council Directive
93/37/EEC (1) of 14 June 1993 coordinating the procedures
for the award of public works contracts and in particular
Articles 3(1) and 11(3), (6) and (7) thereof;

— Order the Italian Republic to pay to the costs.

Pleas in law and main arguments:

According to the Commission, ANAS's concession relating to
the construction and management of the ‘Pedemontana Veneta
Ovest’ motorway without prior publication of a notice does
not comply with Directive 93/37/EEC and in particular with
Articles 3(1) and 11(3), (6) and (7) thereof.

Article 3 of the Directive provides for the application of certain
advertising rules at Community level where the contracting
authorities conclude a public works concession contract if the
value of that contract exceeds EUR 5 million. In particular,
under Article 11(3) of the directive, contracting authorities
wishing to award a works concession contract must make
known that intention by means of a notice to be sent, pursuant
to Article 11(7) of the directive, to the Office for Official Publi-
cations of the European Communities.

Since the contract for the construction and management of the
‘Pedemontana Veneta Ovest’ motorway is worth approximately
EUR 350 million, it clearly should have been the subject of
publication in the Official Journal of the European Communities.

(1) OJ L 199 of 9.8.1993, p. 54.

‘Do articles 43, 49 and 56 of the EC Treaty preclude national
tax legislation such as that in an issue in the main proceedings,
which provides in specified circumstances for the imposition of
a charge upon a company resident in that Member State in
in
respect of
another Member State and subject to a lower level of taxation?’

the profits of a subsidiary company resident

Action brought on 30 April 2004 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-197/04)

(2004/C 168/06)

the Federal Republic of Germany was
An action against
brought before the Court of Justice of the European Commu-
nities on 30 April 2004 by the Commission of the European
Communities, represented by K. Gross, with an address for
service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by applying the tax rate for fine-cut tobacco
for self-rolled cigarettes to rolls of tobacco sold under the
name ‘West Single Packs’, the Federal Republic of Germany
has failed to fulfil
its obligations under Article 4(1)(b) of
Council Directive 95/59/EC (1) on taxes other than turnover
consumption of manufactured
taxes which affect
tobacco and under the first paragraph of Article 2 of
Council Directive 92/79/EEC (2) of 19 October 1992 on the
approximation of taxes on cigarettes;

the

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments:

Reference for a preliminary ruling by the Special Commis-
sioners by order of that court dated 29 April 2004, in the
case of Cadbury Schweppes plc and Cadbury Schweppes
Inland
Overseas Ltd against

the Commissioners of
Revenue

In the Commission's view, the rolls of tobacco sold on the
German market under the name ‘West Single Packs’, which
consumers can wrap in a separately sold cigarette paper with a
filter by simple non-industrial handling, are cigarettes within
the meaning of Article 4(1)(b) of Council Directive 95/59/EG
and, accordingly, must be taxed as such.

(Case C-196/04)

(2004/C 168/05)

The German provisions applying the tax rate for fine-cut
tobacco for self-rolled cigarettes to ‘West Single Packs’ thus
infringe Article 4(1) of Council Directive 95/59/EC and the first
paragraph of Article 2 of Council Directive 92/79/EEC.

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the Special Commissioners
dated 29 April 2004, which was received at the Court Registry
on 3 May 2004,
for a preliminary ruling in the case of
Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd

(1) OJ 1995 L 291, p. 40.
(2) OJ 1992 L 316, p. 8.