Case C-214/04: Action brought on 19 May 2004 by the Commission of the European Communities against the Italian Republic
Date: 2004-07-24
Institutions: Court of Justice
Subjects: EU law - national law, European Commission, Italy, action for failure to fulfil an obligation, chemical product, environmental standard, fire protection, stratospheric pollution

C 190/6

EN

Official Journal of the European Union

24.7.2004

Reference for a preliminary ruling by the Corte Suprema
di Cassazione, Sezione Quinta Civile (Supreme Court of
Cassation, Fifth Civil Chamber) by order of that court of
18 February 2004 in the case of Ministero dell'Economia e
delle Finanze (Ministry of Economic Affairs and Finance)
and Agenzia delle Entrate (Revenue Agency) against FCE
Bank plc

(Case C-210/04)

(2004/C 190/09)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of 18 February 2004 of the Corte
Suprema di Cassazione, Sezione Quinta Civile, which was
received at the Court Registry on 12 May 2004, for a preli-
minary ruling in the case of Ministero dell'Economia e delle
Finanze and Agenzia delle Entrate against FCE Bank plc on the
following questions:

1. Must Articles 2(1) and 9(1) of the Sixth Directive be inter-
preted as meaning that the branch of a company established
in another State (belonging to the European Union or other-
wise), which has the characteristics of a production unit,
may be regarded as an independent person and thus that a
legal relationship between the entities can be said to exist
with consequent liability for VAT in relation to supplies of
services effected by the parent company? Can the ‘arm's
length’ standard laid down in Article 7(2) and (3) of the
OECD model convention on double taxation and the
Convention of 21 October 1988 between Italy and the
United Kingdom of Great Britain and Northern Ireland be
used to define that relationship? Can a legal relationship be
said to exist where there is a cost-sharing agreement
concerning the supply of services to the subordinate entity?
If so, what conditions must be satisfied for such relationship
to be considered to exist? Must the notion of legal relation-
ship be dealt with under national law or Community law?

2. Can the passing on of the costs of such services to the
branch concerned be regarded as consideration for the
services supplied for the purposes of Article 2 of the Sixth
Directive, regardless of the proportion of the costs passed
on and the resulting profit to the company, and if so to
what extent?

3. If the supply of services between the parent company and
the branch are regarded in principle as being exempt from
VAT because the recipient is not independent and conse-
quently a legal relationship between the two entities cannot
be said to exist, is a national administrative practice which
considers that the supply is taxable in such a case contrary
to the right of establishment laid down in Article 43 of the
EC Treaty where the parent company is established in
another Member State of the European Union?

Reference for a preliminary ruling by the Oberster
Gerichtshof (Supreme Court) by order of that court of 29
April 2004 in the case of Ewald Burtscher against Josef
Stauderer

(Case C-213/04)

(2004/C 190/10)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Supreme Court), Austria, of 29 April 2004 received at the
Court Registry on 19 May 2004, for a preliminary ruling in the
Josef Stauderer on the
case of Ewald Burtscher against
following question:

Should Article 56 EC be interpreted as precluding national
legislation (Vorarlberger Grundverkehrsgesetz (Vorarlberg Land
Transfer Law)) by which, in the case of a land purchase transac-
tion that does not require the authorisation of the land transfer
authority, failure by the acquirer to declare by the due date that
the land is built on, that the acquisition is not for holiday
purposes, and that he is, or should be treated as, an Austrian
national, results in the retrospective invalidity of the transac-
tion?

Action brought on 19 May 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-214/04)

(2004/C 190/11)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 May
2004 by the Commission of the European Communities, repre-
sented by Ulrich Wölker and Antonio Aresu, acting as Agents.

The applicant claims that the Court should:

— declare that, by retaining up to the present rules which
permit the use of hydrochlorofluorocarbons in fire protec-
tion installations beyond the limits and outside the condi-
tions laid down in Article 5(3) of Regulation (EC) No
2037/2000 (1) of
the
Council of 29 June 2000 on substances that deplete the
ozone layer, the Italian Republic has failed to fulfil its obli-
gations under that provision;

the European Parliament and of

— order the Italian Republic to pay the costs.

24.7.2004

EN

Official Journal of the European Union

C 190/7

Pleas in law and main arguments:

The Commission claims that the derogations referred to in the
Decree of 3 October 2001 of the Ministry of the Environment
and Protection of the Territory apply to various cases which
are not covered by the derogation laid down in Regulation No
2037/2000 and that therefore the field of application of those
derogations is considerably wider than is permitted under the
regulation itself. In so far as the Italian provisions authorise the
in fire protection
use of hydrochlorofluorocarbons (HCFCs)
installations
under Regulation
2037/2000, those provisions are inconsistent with Community
law.

in cases not permitted

(1) OJ L 244 of 29.9.2000, p. 1

Reference for a preliminary ruling by the Østre Landsret
by order of 14 May 2004 in the case of Marius Pedersen
A/S v Miljøstyrelsen

(Case C– 215/04)

(2004/C 190/12)

there are so many waste producers,

May the criterion be that the waste producer is unknown or
that
the individual
contribution of each of which is so modest that it would be
unreasonable for each individually to be required to notify
the exportation of the waste?

2. Does Article 7(2) of Regulation No 259/93, in conjunction
with Article 7(4)(a), first and second indents in particular,
provide a possibility for the competent authorities of the
country of dispatch to raise an objection against a specific
request for authorisation to export waste for the purpose of
recycling if there is no information from the notifier that
the recipient plant's treatment of the waste in question will,
from the environmental point of view, be of the same stand-
ard as is required under national rules in the country of
dispatch?

3. Must the first indent of Article 6(5) of Regulation No 259/
93 be construed as meaning that the requirement as to
information on the composition of
the waste may be
regarded as being satisfied if the notifier indicates that the
waste in question is of only one specific kind, for example,
‘electronic scrap’?

4. Must Article 7(1) and (2) of Regulation No 259/93 be
construed as meaning that the period in Article 7(2) begins
to run when the competent authority of destination has sent
the
the acknowledgement,
competent authority of dispatch does not consider that it
has received all of the information set out in Article 6(5)?

irrespective of

the fact

that

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of 14 May 2004 of the Østre
Landsret (Eastern Regional Court), which was received at the
Court Registry on 21 May 2004, for a preliminary ruling in the
case of Marius Pedersen A/S v Miljøstyrelsen on the following
questions:

If the answer is in the negative: what information must a
notification contain before the 30-day period indicated in
Article 7(2) can begin to run?

1. Must the expression ‘where this is not possible’ in Article
2(g)(ii) of Regulation No 259/93 (1) be understood as
meaning that an approved collection undertaking cannot
automatically be the notifier of exports of waste for recy-
cling?

If the answer is in the affirmative: which criteria determine
whether an approved collection undertaking can be the
notifier of exports of waste for recycling?

Does the fact of having exceeded the 30-day period for
reply have the effect in law that the authority cannot raise
further objections or request further information?

(1) Council Regulation (EEC) No 259/93 of 1 February 1993 on the
supervision and control of shipments of waste within, into and out
of the European Community (OJ 1993 L 30, p. 1).