Case C-174/07: Action brought on 30 March 2007 — Commission of the European Communities v Italian Republic
Date: 2007-06-23
Institutions: Court of Justice
Subjects: European Commission, Italy, VAT, action for failure to fulfil an obligation, basis of tax assessment, tax exemption, tax harmonisation, tax on consumption, tax relief

C 140/12

EN

Official Journal of the European Union

23.6.2007

2. If the first question is answered in the affirmative:

Pleas in law and main arguments

Having regard in particular to Article 10 EC and to the prin-
ciple of effectiveness of Community law,
is a national
authority entitled and obliged to disapply national provisions
it regards as contrary to Community law even if there is no
clear breach of Community law and it has not been estab-
lished by the Court of Justice of the European Communities
that
the relevant provisions are incompatible with Com-
munity law?

Action brought on 30 March 2007 — Commission of the
European Communities v Italian Republic

(Case C-174/07)

(2007/C 140/20)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Afonso, acting as Agents)

Defendant: Italian Republic

Form of order sought

1. The Commission points out that the Community legislature
imposed a twofold obligation on Member States consisting
not only in adopting all legislative measures required under
national law to implement the Sixth VAT Directive but also
in adopting all administrative measures necessary to ensure
that taxable persons liable to VAT comply with the obliga-
tions arising under the Sixth Directive, primarily the obliga-
tion to pay the tax due as a result of effecting taxable trans-
actions spanning a certain period of time. It would not have
made any sense for
the Community legislature to have
provided for the harmonisation of VAT, nor would it have
served any practical purpose,
if national fiscal authorities
were not required to implement a system of assessment and
monitoring intended to ensure ‘the collection of taxes in a
uniform manner in all Member States’, as stated in the four-
teenth recital in the preamble to the Sixth Directive.

2. The rules introduced by Articles 8 and 9 of Italian Law No
289/2002 went far beyond the bounds of administrative
discretion conferred on the Member States by the Com-
munity legislature. In fact, instead of using that discretion to
achieve more effective fiscal monitoring, by the above-
the Italian State truly abandoned in a
mentioned law,
general, indiscriminate and preventive manner all forms of
VAT assessment and verification, and is thus in direct breach
of the requirements under Article 22 of the Sixth Directive
the general obligation under
and, as a consequence, of
Article 2 to subject all taxable transactions to VAT. The
Italian legislature has given all taxable persons liable to VAT
and subject
fiscal competence the possibility of
bypassing entirely any form of fiscal control in relation to a
series of tax years. A taxable person may acquire such a
significant benefit by the payment of an amount calculated
according to a standard method which no longer has any
connection with the amount of VAT that would have been
payable in respect of the cost of supplies of goods or services
effected by the taxable person in the relevant tax year.

to its

— declare that, by extending by Article 2(44) of Law No 350
of 24 December 2003 (2004 Finance Law) to 2002 the tax
amnesty provided for in Articles 8 and 9 of Law No 289 of
27 December 2002 (2003 Finance Law), and providing
that assessment of
expressly and in a general manner
taxable transactions effected in the 2002 tax period is to be
abandoned, the Italian Republic has failed to fulfil its obliga-
tions under Article 2(1)(a)(c) and (d) and Articles 193 to
273 of Title XI of Council Directive 2006/112/EC (1) of 28
November 2006 on the common system of value added tax,
which from 1 January 2007 repealed and replaced Articles 2
and 22 of Sixth Council Directive 77/388/EEC (2) 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;

— order the Italian Republic to pay the costs.

3. A particularly striking example of this radical

‘separation’
between the tax liability that is calculated as being payable in
accordance with normal VAT rules and the ‘quantum’
payable to qualify for the ‘graveyard amnesty’ is to be found
in the case of a taxable person who has failed to file any tax
return at all. The taxable person can regularise his position
in respect of each tax year by a payment of Euro 1 500 in
the case of a natural person or Euro 3 000 in the case of a
company. A further example of the total absence of any link
with the basis of assessment of transactions effected (but not
declared) is to be found in the rules governing the ‘graveyard’
amnesty, which may be procured by submitting a supple-
mentary statement. The amount payable by a taxpayer
wishing to take advantage of the amnesty is calculated as a
percentage (2 %) to be applied to the VAT that would have
been payable in respect of the supply of goods or services
effected in each tax year (or the VAT improperly deducted in
respect of purchases in the same tax year).

23.6.2007

EN

Official Journal of the European Union

C 140/13

4. Such a general and preventive abandonment of any means of
VAT verification is likely seriously to distort the proper func-
tioning of the common VAT system. In particular, it would
undermine the principle of fiscal neutrality, which precludes
the different VAT treatment of traders effecting the same
transactions. Any exception to the rule that VAT should be
levied and collected effectively would result, on the one
hand, in inflicting serious damage to the detriment of both
Italian undertakings and those in other Member States which
are subject to ordinary value added tax rules and, on the
other hand, in seriously undermining the principle of ‘fair
competition’ within the common market, set out
in the
fourth recital in the Sixth Directive.

(1) OJ L 347 of 13.6.1977, p. 1.
(2) OJ L 145 of 11.12.2006, p. 1.

Council Directive 92/50/EEC (2) of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts, to be interpreted as precluding the possibility under
national law for an individual member of that consortium to
bring an action against the decision awarding the contract?

(1) OJ L 395, p. 33.
(2) OJ L 209, p. 1.

Appeal brought on 16 April 2007 by C.A.S. SpA against
the judgment delivered on 6 February 2007 in Case
the European
T-23/03 C.A.S. SpA v Commission of

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 4 April 2007 — SAVA e C. S.r.l.,
SIEME S.r.l. and GRADED S.p.A. v Mostra d'Oltremare S.p.
A. and Others

(Case C-194/07)

(2007/C 140/21)

Parties

Communities

(Case C-204/07 P)

(2007/C 140/22)

Language of the case: German

Language of the case: Italian

Appellant: C.A.S. SpA (represented by D. Ehle, Rechtsanwalt)

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Sava e C. s.r.l., Sieme s.r.l. and Graded S.p.A.

Defendants: Mostra d'Oltremare S.p.A. and Others

Question referred

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment of the Court of First Instance of 6

February 2007 (1) in Case T-23/03;

— grant the form of order sought at first instance; in the alter-
native, refer the case back to the Court of First Instance for
a decision on the substance;

— allow the applications for measures of organisation of proce-
dure made by the appellant by documents of 28 January
2003, 4 August 2003 and 11 August 2003;

— order the defendant to pay the costs of the proceedings at

first instance.

Where a consortium without legal personality has participated
as such in a procedure for the award of a public contract and
has not been awarded that contract,
is Article 1 of Council
Directive 89/665/EEC (1) of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of
public supply and public works contracts, as amended by

Pleas in law and main arguments

supports

The appellant
its appeal on the following nine
grounds, on the basis of which it regards the contested judg-
ment as erroneous: