Case C-339/04: 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)
Date: 2004-10-09
Institutions: Court of Justice
Subjects: interpretation of the law, parent company, quasi-fiscal charge, service concession, services of general interest, telecommunications

C 251/6

EN

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)?