CELEX: C1999/033/07
Language: en
Date: 1999-02-06 00:00:00
Title: Reference for a preliminary ruling by the Pretura Circondariale di Milano by order of that court of 6 November 1998 in the case of Unilever Italia SpA against Central Food SpA (Case C-443/98)

6.2.1999             EN                  Official Journal of the European Communities                                       C 33/5
2. If the first part of the first question is answered in the       Reference for a preliminary ruling by the Second Chamber
    affirmative, is a Member State in principle obliged to          of the Supremo Tribunal Administrativo by judgment of
    refund to a trader financial charges on the value of            that court of 28 October 1998, in the case of Fazenda
    exported goods which must be regarded as levied in                          PuÂblica v CaÃmara Municipal do Porto
    breach of Community law, on the basis that it is                                        (Case C-446/98)
    established that the person who was required to pay
    the charges at issue in fact passed them on to other                                     (1999/C 33/08)
    persons, namely the purchasers of the goods, and it
    does not follow, nor does the trader claim, that that
    charge caused an increase in the price of the products          Reference has been made to the Court of Justice of the
    and a reduction in the volume of his sales with the             European Communities by a judgment of the Second
    result that he suffered subsequent loss?                        Chamber of the Supremo Tribunal Administrativo
                                                                    (Supreme Administrative Court) of 28 October 1998,
                                                                    which was received at the Court Registry on 7 December
                                                                    1998, for a preliminary ruling in the case of Fazenda
                                                                    PuÂblica v CaÃmara Municipal do Porto, on the following
                                                                    questions:
Reference for a preliminary ruling by the Pretura                   (a) Does the expression activities or transactions in
Circondariale di Milano by order of that court of                         which they engage as public authorities' used in the
6 November 1998 in the case of Unilever Italia SpA                        first subparagraph of Article 4(5) of the Sixth VAT
                  against Central Food SpA                                Directive (1) cover the renting out of areas for the
                                                                          parking of vehicles (both on-street and off-street
                       (Case C-443/98)                                    parking) by the public authorities (a municipality)?
                        (1999/C 33/07)
                                                                    (b) May the significant distortions of competition
                                                                          referred to in the second subparagraph of Article 4(5)
                                                                          of the Sixth VAT Directive be defined case by case by
                                                                          the Minister of Finance of a Member State?
Reference has been made to the Court of Justice of the
European Communities by order of the Pretura
Circondariale di Milano (District Magistrate's Court,               (c)   If the national provision which empowers the
Milan) of 6 November 1998, which was received at the                      Minister of Finance to define, case by case,
Court Registry on 7 December 1998, for a preliminary                      significant     distortions     of    competition      is
ruling in the case of Unilever Italia SpA against Central                 unconstitutional, in that it infringes the principle that
Food SpA on the following question:                                       taxation must have a legislative basis, but conforms
                                                                          with Community law (with the Sixth Directive), must
                                                                          the national court comply with its Constitution or
                                                                          must it, first and foremost, comply with Community
May a national provision which has been promulgated                      law by virtue of the principle of the primacy of that
and entered into force in the Member State (Law No 313                    law over constitutions?
of 3 August 1998) be disapplied by a national court called
upon to issue an order for payment in relation to the
supply of extra virgin olive oil labelled in a manner not in        (d) Will the public authorities always be regarded as
accordance with the provisions of the aforementioned                      taxable persons provided that the activities in which
national provision, considering that, following the                       they engage are not insignificant, or are they taxable
notification and the subsequent examination of a draft                    persons only as regards the activities or transactions
national Law concerning the labelling of extra virgin olive               listed in Annex D, to which the third subparagraph
oil, virgin olive oil and olive oil, the European                         of Article 4(5) of the Sixth VAT Directive refers?
Commission, on the basis of Article 9(3) of Council
Directive 83/189/EEC (1) laying down a procedure for the
provision of information in the field of technical standards        (e)   May a national law authorise the Minister of Finance
and regulations, formally requested the notifying State not               to define, case by case, what activities are being
to legislate, prescribing a period (until 14 September                    engaged in on a basis that is not significant?
1999) in respect of the marketing rules for olive oil,
pending the adoption of a Community regulation on the
matter at issue?'                                                   (f)   For the purposes of the last subparagraph of
                                                                          Article 4(5) of the Sixth VAT Directive, may a
                                                                          Member State regard on activity of renting out areas
(1) OJ L 109, 26.4.1983, p. 8.                                            intended for the parking of vehicles, when it is
                                                                          carried on by a municipality, as an activity in which
                                                                          the municipality engages as a public authority, having
                                                                          regard to the provisions of Article 13B(b)(2) of the
                                                                          Sixth VAT Directive?