Case C-410/04: Reference for a preliminary ruling by the Tribunale amministrativo regionale per la Puglia by order of 22 July 2004 in the case pending before it between Associazione Nazionale Autotrasporto Viaggiatori — A.N.A.V. and Comune di Bari and A.M.T.A.B. Servizio SpA
Date: 2004-12-04
Institutions: Court of Justice
Subjects: Italy, administrative transparency, award of contract, free competition, interpretation of the law, invitation to tender, organisation, public administration, services of general interest

4.12.2004

EN

Official Journal of the European Union

C 300/27

a. the right to dispose of the goods as owner has passed
to the purchaser and the goods have been supplied
by the supplier by placing them at the disposal of the
purchaser, on an ex works contract of sale whereby
the purchaser assumes responsibility for removing
the goods to a different Member State from that of
supply, at a secure warehouse located in the suppli-
er's Member State, where the contractual documents
the
and/or other documentary evidence state that
intention is that the goods should then be trans-
ported onwards towards a destination in another
Member State, but the goods have not yet physically
left the territory of the Member State of Supply; or

b. the right to dispose of the goods as owner has passed
to the purchaser and the goods have commenced,
but not necessarily completed, their journey towards
a different Member State (in particular, the goods
have not yet physically left
the
Member State of supply); or

the territory of

c. the right to dispose of the goods as owner has passed
to the purchaser and the goods have left the territory
the Member State of supply on their journey
of
towards a second Member State; or

d. the right to dispose of the goods as owner has passed
to the purchaser and the goods can also be shown to
have actually arrived in the Member State of destina-
tion?

authorities

competent

3. In the relevant circumstances, where a supplier acting in
good faith has tendered to the competent authorities in his
Member State, after submission of a repayment claim, objec-
tive evidence which at the time of its receipt apparently
supported his right to exempt goods under Article 28cA(a)
initially accepted that
and the
evidence for the purpose of exemption,
in what circum-
stances (if any) may the competent authorities in the
Member State of supply nevertheless subsequently require
the supplier to account for VAT on those goods where
further evidence comes to their attention that either (a) casts
doubt upon the validity of
the earlier evidence or (b)
demonstrates that the evidence submitted was materially
false, but without the knowledge or the involvement of the
supplier?

4. Is the answer to question 3 above affected by the fact that
there was evidence that the purchaser made returns to the
tax authorities in the Member State of destination, where
those returns included as intra-Community acquisitions the
purchases the subject matter of these claims, the purchaser
entered an amount purporting to represent acquisition tax
and also claimed the same amount as input tax in accord-
ance with Article 17(2)(d) of the Sixth Directive?

(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to turnover

taxes — Common system of value added tax: uniform basis of
assessment (OJ L 145, 13.06.1977, p. 1).

Reference for a preliminary ruling by the Tribunale ammi-
nistrativo regionale per la Puglia by order of 22 July 2004
in the case pending before it between Associazione Nazio-
nale Autotrasporto Viaggiatori — A.N.A.V. and Comune di
Bari and A.M.T.A.B. Servizio SpA

(Case C-410/04)

(2004/C 300/53)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale amministrativo
regionale per la Puglia (Regional Administrative Court
for
Apulia) of 22 July 2004, received at the Court Registry on 27
September 2004, for a preliminary ruling in the case of Asso-
ciazione Nazionale Autotrasporto Viaggiatori — A.N.A.V.
against Comune di Bari and A.M.T.A.B. Servizio SpA on the
following question:

‘Is the part of paragraph V of Article 113 of Legislative Decree
No 267/00 as amended by Article 14 of Decree Law No 269/
03 that sets no limit on the freedom of a public authority to
choose between the different methods of awarding a contract
for the provision of a public service, and, in particular, between
an award as a result of a public and open tender procedure and
direct award to a company wholly controlled by the authority,
compatible with Community law, and, in particular, with the
obligations to ensure transparency and freedom of competition
pursuant to Articles 46, 49 and 86 of the Treaty?’

Action brought on 24 September 2004 by the Commission
of the European Communities against the Italian Republic

(Case C-412/04)

(2004/C 300/54)

Justice of

An action against the Italian Republic was brought before the
the European Communities on 24
Court of
September 2004 by the Commission of the European Commu-
nities, represented by Klaus Wiedner and Giuseppe Bambara,
acting as Agents.