Case C-571/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic
Date: 2008-12-22
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, approval of tariffs, assessment of prices, smoking, tobacco

7.3.2009

EN

Official Journal of the European Union

C 55/13

if any,
Lastly, the Italian authorities have not explained what,
alternative measures,
lawyers established in
less restrictive of
other Member States, have been considered; nor have they set
interests pursued are not
out
already protected by the provisions in force in the other
Member States of
the Community for governing the legal
profession.

the reasons why the general

Reference for a preliminary ruling from the Anotato
Dikastirio Kiprou (Cyprus) lodged on 22 December 2008
— Simvoulio Apokhetevseon Levkosias v Anatheoretiki
Arkhi Prosforon

(Case C-570/08)

(2009/C 55/20)

Language of the case: Greek

Referring court

Anotato Dikastirio Kiprou (Supreme Court of Cyprus)

Form of order sought

— Declare that, by providing for a minimum price for cigar-
ettes and a period of 120 days within which approval is to
be obtained for a change in the price of manufactured
tobacco, the Italian Republic has failed to fulfil its obliga-
tions under Article 9(1) of Directive 95/59/EC (1).

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The minimum price

The Commission submits that, by fixing a minimum price for
cigarettes,
the Italian Republic has infringed Article 9(1) of
Directive 95/59/EC (and Article 5 of Directive 72/464/EEC (2),
which it replaces and which is essentially identical to it). That
the principle that manufacturers and
provision establishes
importers are free to determine the maximum retail selling price
for manufactured tobacco. In accordance with that principle,
Member States cannot justify the exercise of any discretion to
fix maximum retail selling prices by reference to ‘the control of
price levels’, ‘the observance of imposed prices’ or the fixing of
a scale of retail selling prices in accordance with Article 9(2) of
Directive 95/59/EC.

Parties to the main proceedings

Applicant: Simvoulio Apokhetevseon Levkosias (Nicosia Sewage
Council)

Respondentt: Anatheoretiki Arkhi Prosforon (Tenders Review
Authority)

The minimum price cannot be justified by on the grounds of
protection of public health. That objective, which was taken into
account by the Community legislature, can be achieved by
means of increased taxation of cigarettes, in accordance with the
tax parameters that are appropriate to the situation of each
Member State.

Question referred

Does Article 2(8) of Directive 89/665/EC recognise contracting
authorities as having a right to judicial review of cancellation
decisions by bodies responsible for review procedures which are
not judicial bodies?

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

(Case C-571/08)

(2009/C 55/21)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: W. Mölls and L. Pignataro, agents)

Defendant: Italian Republic

The Italian Government's argument alleging that, as a result of
prices that are too high or inappropriate in terms of the market,
there is a risk of increasing trafficking in contraband or counter-
feit goods is also unfounded. That argument is based on mere
assertions made by the Italian Government which are not
substantiated by any evidence in that it has failed to explain
how the difference in prices as a result of an increase in taxation
should lead to a greater incidence of fraud than would be the
case if a minimum price policy were adopted. The Commission
maintains that it is for the individual Member State to carry out
the necessary controls, within the framework of Community
law, to ensure that the taxes owing to it are collected. That
requirement must not in any way affect the obligation incum-
bent upon Member States to comply with the provisions of
Directive 95/59/EC, including Article 9 thereof.

The 120-day period within which approval
obtained for the prices of manufactured tobacco

is to be

For the purpose of marketing in Italy, the prices of manufac-
tured tobacco products must be registered for inclusion on the
official list of prices. The request for registration must be sent to
the Ministero dell'Economia e delle Finanze (Finance Ministry)
— Amministrazione Autonoma dei Monopoli di Stato (the
autonomous body administering State monopolies)
(AAMS).
The AAMS does not enjoy any discretion as to whether to
confirm the registration. The Commission takes the view that

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;