CELEX: C1997/142/20
Language: en
Date: 1997-05-10 00:00:00
Title: Action brought on 7 March 1997 by the Commission of the European Communities against the Italian Republic (Case C-101/97)

10 . 5 . 97         EN                     Official Journal of the European Communities                                  No C 142/9
Pleas in law and main arguments adduced in support:                   Turin v. Ministero . delle Finanze dello Stato on the
                                                                      following question:
The Government considers that the decision of the
Commission is unlawful in so far as it orders a financial             If the judgment of the Court of Justice of 20 April 1993 in
adjustment for the purpose of clearing the EAGGF                      Joined Cases C-71/91 and C-178/91 Ponente Carni Spa
accounts with regard to the sum of Lit 11 934 331 913                 and Cispadana Costruzioni Spa v. Amministrazione delle
and accordingly challenges the decision itself, seeking the           Finanze dello Stato (*) on a reference made under
partial annulment thereof on the following ground:                    Article 177 of the EEC Treaty on the interpretation of
                                                                      Articles 10 and 12 of Council Directive 69/335/EEC (2 )
Infringement of Article                  11   of Commis­              and those Articles of that Directive must be interpreted —
sion Regulation ( EEC )                No      2677 / 85 of           in proceedings brought before the national court for
24 September 1985                                                     repayment of taxes paid pursuant to national legislation
                                                                      ( Article 3 of Decree-Law No 853 of 19 December 1984,
                                                                      enacted as Law No 17/1985 , as amended ) contrary to that
The Azienda per gli Interventi nel Mercato Agricola ( State           Directive — as meaning that the prescription periods laid
Board for Intervention in the Agricultural Market, AIMA)              down by Article 13 of Decree No 641 /72 of the President
observed the provisions contained in Article 11 of                    of the Republic may or may not be relied upon in order to
Regulation ( EEC ) No 2677/85 in respect of security.                 refuse such repayment and, if they may be so relied upon,
                                                                      as meaning that those periods must start running on the
The allegations made in the Summary Report are untrue                 date of payment or at the time when the aforementioned
with regard to 82 instances 'relating to applications for             Directive was properly transposed into national law ?
aid unduly paid, covered, moreover, by valid security and
which has not yet been recovered from the national                    H [ 1993 ECR 1-1915 .
authority'.                                                           (2 ) OJ, English Special Edition 1969(11), p. 412.
Some amounts have already been received and paid to the
EAGGF. In respect of others, the sums have been
recovered by being set off against other amounts which
were payable . In one instance, the credit which fell to be
recovered is guaranteed by means of a voluntary first                 Action brought on 7 March 1997 by the Commission of
mortgage. In many other cases, the necessary executive                    the European Communities against the Italian Republic
procedures have been put in place for the compulsory                                            ( Case C-101/97)
recovery of amounts due.
                                                                                                   97/C 142/20 )
Finally, a special situation is that regarding the 'Caruso
Rosa' company, in respect of which the 'AgencontroP                   An action against the Italian Republic was brought before
found that there had been infringements, without,                     the Court of Justice of the European Communities on
however, succeeding in quantifying the amount of the aid              7 March 1997 by the Commission of the European
unduly paid. In the absence of reliable information, it has           Communities, represented by Enrico Traversa, of its Legal
not been possible to forfeit the securities. To that end, the         Service, acting as Agent, with an address for service at the
Guardia di Finanza has therefore been requested to                    office of Carlos Gomez de la Cruz, Wagner Centre,
investigate further and when such investigation is                    Kirchberg.
completed any aid unduly received by the undertaking will
be recovered .                                                        The applicant claims that the Court should:
                                                                      — declare that, by adopting and maintaining in force a
                                                                            law relating to value added tax which does not permit
                                                                            deduction of the tax in respect of real property
                                                                            acquired, even by means of financial leasing, in joint
Reference for a preliminary ruling from the Tribunale                       ownership or co-ownership with persons who are not
Civile e Penale di Torino — Prima Sezione Civile — by                       acting in connection with carrying on a business, trade
order of that court of 14 February 1997 in the case of CIF                  or profession, the Italian Republic has failed to fulfil
srl, operating in Turin, v. Ministero delle Finanze dello                   its obligations under Article 17 ( 2 ) ( a ) of Council
                              Stato                                         Directive 77/388/EEC of 17 May 1977 H ( the Sixth
                       ( Case C-98/97 )                                     VAT Directive ),
                         ( 97/C 142/19 )                              — order the Italian Republic to bear the costs.
Reference has been made to the Court of Justice of the                Pleas in law and main arguments adduced in support:
European Communities by order of the Tribunale Civile e
Penale di Torino — Prima Sezione Civile — ( Civil and                 The Commission cannot but note the glaring discrepancy
Criminal Court, Turin, First Civil Section ) of 14 February           between Article 19 (2 ) ( e ) ( b ) of the Italian Presidential
1997, received at the Court Registry on 6 March 1997,                 Decree and Article 17 (2 ) ( a ) of the Sixth Directive, as
for a preliminary ruling in the case of CIF srl, operating in         interpreted in the decisions of the Court.
 ---pagebreak--- No C 142/10            EN                  Official Journal of the European Communities                                          10 . 5 . 97
Deduction of the VAT liable to be paid in connection with             Pleas in law and main arguments adduced in support:
real property acquired by a taxable person in joint
ownership or co-ownership with individuals must be                    The treatment of waste oil is regulated in the Federal
authorized immediately and unconditionally, in proportion             Republic of Germany primarily by the Abfallgesetz ( Law
of course to the part of the property used for business               on Waste Products ) ( until 6 October 1996 ) and the
purposes .                                                            Kreislaufwirtschafts- und Abfallgesetz ( Law on Economic
                                                                      Cycles and Waste Products) ( since 7 Oktober 1996 ) and
Excluding that deduction constitutes a breach of the                  by the subordinate legislation enacted pursuant thereto
principle of neutrality of the tax which, where the                   ( the Altolverordnung ( Regulation on Waste Oils ), the Ab­
property is resold, would be charged twice on the same                fallbestimmungsverordnung ( Regulation on dealing with
taxable amount, that is to say the price of that part of the          Waste Products ), the Reststoffbestimmungsverordnung
property used for business purposes. Where property is                ( Regulation dealing with Residual Matter ) and the Abfall­
resold, the trader or other self-employed person carries out          und Reststoffiiberwachungsverordnung ( Regulation on the
a taxable transfer and is liable to pay to the tax                    Control of Waste Products and Residual Matter)). None
authorities the VAT received from the purchaser of the                of the provisions of that legislation gives priority to the
property, even though that same taxable person, on his                regeneration of waste oils . According to paragraph 6 ( 1 )
purchase of that same property, had paid the VAT charged              of the Kreislaufwirtschafts- und Abfallgesetz ( BGB1 . I
him hy the vendor without any possibility of deduction for            1994, p. 2705 ), waste products may be used as materials
the part to be used for business purposes, in short being             or used for energy purposes. Priority is given to whichever
treated as though he were the end-user of the entire                  form of utilization is better adapted to the environment.
property.                                                             Rules may be adopted giving priority either to use for
                                                                      material purposes or to utilization for energy purposes,
In essence, by providing for that derogation from the                 depending on which use constitutes a better solution in
principle that VAT paid on business costs should be                   environmental terms . Although discussion took place at
deductible, the Italian legislature has arbitrarily introduced        the time of the adoption of the Kreislaufwirtschafts- und
an irrebuttable presumption of evasion in relation to all             Abfallgesetz as to whether priority should be given to
purchases by taxable persons jointly with private                     regeneration, such priority was not ultimately provided for
individuals of property intended for undifferentiated use,            in that Law. This is contrary to the wording of Article 3(1 )
without taking into account the actual, even though                   of Directive 75/439/EEC, as amended by Directive 87/101 /
partial, use of that investment property for the business             EEC, and to the choice made by the European legislature,
requirements.                                                         as expressed in the recitals in the preamble to Directive
                                                                      87/ 101 /EEC: regeneration is generally the most rational
(') OJ No L 145 , 13 . 6 . 1977, p . 1 .                              way of re-using waste oils in view of the energy savings
                                                                      which can be achieved, and priority should therefore be
                                                                      given to the processing of waste oils by regeneration ( see
                                                                      the second recital in the preamble to Directive 87/101 /
                                                                      EEC ). Although the prohibition of the mixing of waste
                                                                      oils laid down by paragraphs 2 ( 1 ) and 4 ( 1 ) and ( 2 ) of
Action brought on 10 March 1997 by the Commission of                  the Altolverordnung prevents high-grade waste oils from
the European Communities against the Federal Republic                 being extracted by the regenerating industry, and thus
                             of Germany                               represents a condition of regeneration, it does not
                          ( Case C-102/97)                            establish any priority in favour of regeneration.
                             97/C 142/21 )
                                                                      ( 1 ) Council Directive 75/439/EEC of 16 June 1975 on the
                                                                            disposal of waste oils ( OJ No L 194, 1975, p. 31 ).
An action against the Federal Republic of Germany was                 ( 2 ) Council   Directive       87/ 101 /EEC of 22  December     1986
brought before the Court of Justice of the European                         amending Directive 75/439/EEC on the disposal of waste oils
Communities on 10 March 1997 by the Commission of                           ( OJ No L 42 , 12 . 2 . 1987, p. 43 ).
the European Communities, represented by Gotz zur
Hausen, Legal Adviser in the Commission, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, of the Legal Service of the European
Commission, Wagner Centre C 254, Kirchberg.
                                                                      Reference for a preliminary ruling from the Amt der
The applicant claims that the Court should:                           Tiroler Regierung (Landesvergabeamt) by order of that
                                                                      body of 7 November 1996 in the review proceedings
— declare that, by failing to give priority to the material,          brought by Josef Kollensperger GmbH & Co KG and
     rather than the thermal, processing of waste oils,                           Atzwanger AG against Gemeindeverband
     notwithstanding that such processing is not precluded                                 Bezirkskrankenhaus Schwaz
     by any economic, technical or organizational                                                   ( Case C-103/97 )
    constraints, the Federal Republic of Germany has
     failed to fulfil its obligations under Article 3 ( 1 ) of                                        ( 97/C 142/22 )
     Council Directive 75/439/EEC H as amended by
    Directive 87/ 101 /EEC ( 2 ),                                     Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Amt der Tiroler
— order the Federal Republic of Germany to pay the                    Landesregierung, Landesvergabeamt ( Office of the
    costs .                                                           Regional Government for the Tyrol — Regional Public