Case C-336/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Pordenone — Second Chamber — by order of that court of 14 July 2004 in the case of Banca Popolare Friuladria SpA against Agenzia Entrate Ufficio Pordenone
Date: 2004-10-09
Institutions: Court of Justice
Subjects: Italy, State aid, aid system, bank, control of State aid, interpretation of the law, redemption

9.10.2004

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Official Journal of the European Union

C 251/5

3. Is Article 81 of the EC Treaty to be interpreted as meaning
that it entitles third parties who have a relevant legal interest
to rely on the invalidity of an agreement or practice prohib-
ited by that Community provision and claim damages for
the harm suffered where there is a causal relationship
between the agreement or concerted practice and the harm?

4. Is Article 81 of the Treaty to be interpreted as meaning that
for the purposes of the limitation period for bringing an
action for damages based thereon, time begins to run from
the day on which the agreement or concerted practice was
adopted or the day on which the agreement or concerted
practice came to an end?

5. Is Article 81 of the Treaty to be interpreted as meaning that
where the national court sees that the damages that can be
awarded on the basis of national law are lower than the
economic advantage gained by the infringing party to the
prohibited agreement or concerted practice, should also
award of its own motion punitive damages to the injured
third party in order to make the compensable amount
higher than the advantage gained by the infringing party
and deter the adoption of agreements or concerted practices
prohibited under Article 81 of the Treaty?

Reference for a preliminary ruling by the Szombathelyi
Városi Bíróság by order of that court of 10 June 2004 in
the case Ynos Kft. against János Varga

(Case C-302/04)

(2004/C 251/09)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Szombathelyi Városi
Bíróság (Szombathely City Court, Hungary), of 10 June 2004,
which was received at the Court Registry on 19 July 2004, for
a preliminary ruling in the case of Ynos Kft. against János
Varga.

The Szombathelyi Városi Bíróság asks the Court of Justice to
give a preliminary ruling on the following questions:

1. May Article 6(1) of Council Directive 93/13/EEC (1) of 5
April 1993 on unfair terms in consumer contracts, which
provides that Member States are to lay down that unfair
terms used in a contract concluded with a consumer by a
seller or supplier are, as provided for under their national
law, not to be binding on the consumer, be interpreted as
meaning that it may constitute the basis of a national provi-
sion such as Article 209(1) of Law No IV of 1959 on the
Civil Code, applicable when a general condition in a
contract stating that unfair terms do not cease to bind the

consumer ipso jure, but do so only where an express
declaration to that effect is made, that is to say, when they
are successfully contested, is found to be unfair?

2. Does

it

follow from that provision of

the Directive,
according to which the contract is to continue to bind the
parties upon those terms if it is capable of continuing in
existence without the unfair terms, that where the unfair
terms inserted by a seller or supplier are not binding on the
consumer as provided for under national law, but where in
the absence of those terms, which form part of the contract,
the seller or supplier would not have concluded the contract
with the consumer, the validity of the contract as a whole
cannot be affected if it is capable of continuing in existence
without the unfair terms?

3. From the point of view of the application of Community
is it relevant that the main dispute arose before the
law,
accession of
the Republic of Hungary to the European
Union, but after the adaptation of its domestic law to the
Directive?

(1) OJ L 95, p. 29.

Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Pordenone — Second Chamber
— by order of that court of 14 July 2004 in the case of
Banca Popolare Friuladria SpA against Agenzia Entrate
Ufficio Pordenone

(Case C-336/04)

(2004/C 251/10)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria
Provinciale di Pordenone (Provincial Tax Commission of Porde-
none) (Italy) of 14 July 2004, received at the Court Registry on
2 August 2004, for a preliminary ruling in the case of Banca
Popolare Friuladria SpA against Agenzia Entrate Ufficio Porde-
none on the following questions:

1. Is Commission Decision 2002/581/EC (1) of 11 December
2001 (OJ 2002 L 184, p. 27) invalid and incompatible with
Community law, in that the provisions of Law 461/98 and
the related Legislative Decree 153/99 regarding banks are
compatible with the Common Market, contrary to the
opinion of the European Commission, or do they in any
case fall within the scope of the derogations provided for by
Article 87(3)(b) and (c) of the EC Treaty?

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Official Journal of the European Union

9.10.2004

2. In particular, is Article 4 of the above-mentioned decision
invalid and incompatible with Community law, in that the
Commission:

must pay, albeit only on a temporary basis, an additional
fee for the allocation of the telecommunications network to
the parent company, compatible with the basic principles
laid down in the abovementioned Directive 97/13? (1)

(a) failed in its duty to provide adequate reasons in accord-

ance with Article 253 of the EC Treaty; and/or

(b) infringed the principle of the protection of legitimate

expectations; and/or

(c) infringed the principle of proportionality?

3. In any event, does a correct interpretation of Article 87 et
seq. of the EC Treaty, Article 14 of Council Regulation (EC)
No 659/1999 (2) and the general principles of Community
law,
in particular those mentioned in the grounds of the
order for reference, preclude the application of Article 1 of
Decree Law 282 of 24 December 2002 (converted into Law
27 of 21 February 2003)?

(b) Is a national provision which calculates (it should be
stressed, on a temporary basis) the second and additional
fee charged for the activity carried out
for the parent
company on the basis of what was paid in the past by the
parent company under the previous system of exclusive
rights, with separate franchises
telecommunication
systems for public use and franchises for systems for
private use, consistent with Community law and the inter-
pretation placed thereon by the Fifth Chamber of the Court
of Justice in its judgment of 18 September 2003?

for

(1) OJ L 117, p. 15.

(1) On the tax measures for banks and banking foundations imple-

mented by Italy.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty , OJ L 83 of 27.03.1999, p. 1.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale della Lombardia
(Sezione
Terza) by order of 27 May 2004 in the case Carbotermo
SpA against Comune di Busto Arsizio (third party: AGESP
s.p.a.)

Reference for a preliminary ruling by the Consiglio di
Stato sitting in judicial capacity (Sixth Chamber) by order
of that court of 24 February 2004, in the case of Nuova
Società di Telecomunicazioni SpA against Ministero delle
Comunicazioni (Ministry of Communications)

(Case C-340/04)

(2004/C 251/12)

(Case C-339/04)

(2004/C 251/11)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato sitting in
judicial capacity (Sixth Chamber) (Italy) of 24 February 2004,
received at the Court Registry on 9 August 2004, for a preli-
minary ruling in the case of Nuova Società di Telecomunica-
zioni SpA against Ministero delle Comunicazioni (Ministry of
Communications) and ENI SpA on the following questions:

(a) Is a national provision which — having required companies
entitled to provide public utility services, which have estab-
lished telecommunications networks in the past to meet
their own needs under a system of paid franchises, to set
up a separate company to carry out any activity in the field
of
the separate
company, although licensed to provide public services,

telecommunications — provides

that

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of 27 May 2004 of the Tribunale
Amministrativo Regionale della Lombardia, which was received
at the Court Registry on 9 August 2004, for a preliminary
ruling in the case of Carbotermo SpA against Comune di Busto
Arsizio (third party: AGESP s.p.a.) on the following questions:

(1) Is the direct award of a contract for the supply of fuel for
heating appliances in buildings owned by or within the
competence of the Municipality, and relating to operation,
supervision and maintenance (the main value of which lies
in supply), to a joint stock company whose capital is, at
present, held entirely by another joint stock company, of
which the awarding Municipality is, for its part, the major
shareholder (with 99.98 % of the shares), or to a company
(AGESP) in which a direct holding is owned not by the
public authority but by another company (AGESP Holding),
99.98 % of whose capital is presently owned by the public
administration, compatible with Directive 93/36/EEC (1)?