Case C-572/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic
Date: 2008-12-22
Institutions: Court of Justice
Subjects: action for failure to fulfil an obligation, infringement of EU law, lubricants, tax system, used oil

C 55/14

EN

Official Journal of the European Union

7.3.2009

the effect of the excessively long period of 120 days prescribed
by the Italian authorities for complying with a request to change
prices is that the principle that economic operators must be free
to fix maximum prices, enshrined in Article 9(1) of Directive
95/59/EC, is, in practice, to some extent undermined.

That system reproduces a previous regime of tax concessions
already condemned by the Court of Justice in 1980, and the
Italian Republic's arguments in favour of the new system cannot
justify such a choice.

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco (OJ 1995 L 291, p. 40).

(2) Council Directive 72/464/EEC of 19 December 1972 on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco (OJ 1972 L 303, p. 1).

Action brought on 22 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-573/08)

(2009/C 55/23)

Language of the case: Italian

Action brought on 22 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-572/08)

(2009/C 55/22)

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia, acting as Agent)

Language of the case: Italian

Defendant: Italian Republic

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Aresu and W. Mölls, acting as Agents)

Defendant: Italian Republic

Forms of order sought

— A declaration that the Italian Republic has failed to fulfil its
obligations under Article 90 EC, by conferring a tax conces-
sion on regenerated lubricating oil produced from used oil
collected in Italy, but refusing to confer the same concession
on regenerated lubricating oil produced from used oil
(in accordance with
collected in other Member States
the Italian Revenue
Circular 24/D of 5 May 2004 of
Authority
Law No 266 of
and Article 1(116) of
23 December 2005, as interpreted by Article 62 of the Testo
le imposte sulla
unico delle disposizioni
produzione e sui consumi e relative sanzioni penali e amministra-
tive (Consolidated Text of Legislative Provisions relating to
duties on production and consumption and related criminal
and administrative penalties) approved by Decree No 504 of
the President of the Republic of 26 October 1995);

legislative concernenti

— An order that the Italian Republic is to pay the costs.

Pleas in law and main arguments

The Commission complains that the Italian authorities are oper-
ating a system of tax concessions on regenerated lubricating oil
that
which favours national production to the detriment of
from other Member States, in clear breach of the principle of
non-discrimination, which in the field of taxation is laid down
in Article 90 EC.

Form of order sought

— Declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 13 and 18 of
Directive 79/409/EEC:

— by failing to transpose Directive 79/409/EEC (1)

into
Italian law in a manner which is wholly in compliance
with that directive;

— by failing to transpose Article 9 of Directive 79/409/EEC
into Italian law in a manner which ensures that the dero-
gations adopted by the competent
Italian authorities
comply with the conditions and requirements laid down
in that provision;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission argues that the Italian legislation does not
fully transpose Directive 79/409/EEC into Italian law in a
manner that is in compliance with that directive:

Article 2: not transposed;

Article 3: not transposed in compliance with the directive,
owing to the failure to transpose Article 2;

Article 4(4): not transposed;

Article 5: non-transposition of the prohibition of the deliberate
destruction of nests and eggs, or of deliberate damage thereto,
and of
the
species of bird protected by the directive;

the deliberate disturbance of

the prohibition of

Article 6: non-transposition of the prohibition on transport for
sale;