CELEX: C1996/247/18
Language: en
Date: 1996-08-24 00:00:00
Title: References for preliminary rulings by the Tribunale di Genova by order of that court of 15 May 1996 in the cases of 1) Carlo Bagnasco and Others v. Banca Popolare di Novara Soc. coop. arl and 2) Carlo Bagnasco and Others v. Cassa di Risparmio di Genova Imperia (Carige) SpA (Case C-215/96 and C-216/96)

24 . 8 . 96             EN                  Official Journal of the European Communities                                     No C 247/9
Under Finnish national legislation on the taxation of energy,          The applicant claims that the Court should :
excise duty on electricity is levied in Finland on electrical
energy produced there, the amount of the duty depending on             1 . declare that, by failing to establish or communicate the
the method of production of the electricity . On electricity                  programmes for the reduction of pollution of waters as
produced by nuclear power, the excise duty charged is a                       regards the substances referred to in List II in the Annex
basic duty of 1,5 p/kWh and an additional duty of 0,9                         to Directive 76/464/EEC on pollution caused by certain
p/kWh . On electricity produced by water power, the excise                    dangerous substances discharged into the aquatic
duty charged is only an additional duty of 0,4 p/kWh . On                     environment of the Community ( '), as required by
electricity produced by other methods, for example from                       Article 7 thereof, the Kingdom of Spain has failed to
coal, excise duty is charged on the basis of the amount of                    fulfil its obligations under that Directive;
input materials used to produce the electricity . On electrical
                                                                       2 . order the Kingdom of Spain to pay the costs .
energy produced by some methods, for example in a
generator with an output below two megavolt-amperes, no
excise duty at all is charged . On imported electricity, the           The pleas in law and main arguments adduced in support are
                                                                       the same as those in Case C-20 5/96 H.
excise duty charged, regardless of the method of production
of the electricity, is a basic duty of 1,3 p/kWh and an
                                                                       (') OJ No L 129 , 18 . 5 . 1976 , p. 23 .
additional duty of 0,9 p/kWh . The excise duty on electricity
                                                                       ( 2 ) See page 7 of this Official Journal .
is thus determined with respect to imported electricity on a
different basis from that applied to electricity produced in
Finland . The levying of excise duties determined on the basis
of the method of production of the energy is founded on
environmental grounds in the drafting history of the law .
The amount of duty chargeable on imported electricity is               References for preliminary rulings by the Tribunale di
not, however, determined on the basis of the method of                 Genova by order of that court of 15 May 1996 in the cases of
production of the electricity . The excise duty chargeable on          1 ) Carlo Bagnasco and Others v. Banca Popolare di Novara
imported electricity is higher than the lowest excise duty             Soc. coop, arl and 2 ) Carlo Bagnasco and Others v. Cassa di
chargeable on electricity produced in Finland, but lower                          Risparmio di Genova Imperia ( Carige ) SpA
than the highest excise duty chargeable on electricity                                    ( Case C-215 /96 and C-216/96 )
produced in Finland . The excise duty on imported electricity                                       96/C 247/ 18 )
is levied on the importer, whereas the excise duty relating to
electricity produced in Finland is levied on the electricity           References have been made to the Court of Justice of the
producer .                                                             European Communities by orders from the Tribunale di
                                                                       Genova ( District Court, Genoa ) of 15 May 1 996 , received at
1 . Is excise duty on electricity, determined for imported             the Court Registry on 21 June 1996 , for preliminary rulings
     electricity in the manner described above , to be regarded        in the cases of, first, Carlo Bagnasco and Others v. Banca
     as a charge having equivalent effect to a customs duty,           Popolare di Novara Soc . coop , arl and , second, Carlo
     within the meaning of Articles 9 and 12 of the EC                 Bagnasco and Others v. Cassa di Risparmio di Genova
     Treaty ?                                                          Imperia ( Carige ) SpA on the following questions :
2 . If it is not a charge having equivalent effect to a customs        1 . Whether the Norme Bancarie Uniforme ( Uniform Bank
     duty , is excise duty on electricity , determined for                    Rules ) laid down by the ABI (') for its members in
     imported electricity in the manner described above, to                   relation to contracts for the opening of current account
     be regarded as a tax which discriminates against imports                 credit facilities — since they are laid down and applied in
     from other Member States, within the meaning of                        ■ a uniform and binding manner by the banks belonging
     Article 95 of the EC Treaty ?                                            to the ABI — are compatible with Article 85 of the
                                                                              Treaty, where they make the credit facility subject to
                                                                              conditions for determination of an interest rate which is
                                                                              not previously determined and is not determinable by
                                                                              the customer, and they are liable adversely to affect trade
                                                                              between the Member States and have as their object and
                                                                              effect the prevention, restriction or distortion of
                                                                              competition within the Common Market;
Action brought on 25 June 1996 by the Commission of the
   European Communities against the Kingdom of Spain                   2 . What effects any finding of incompatibility in
                         ( Case C-2 14/96 )                                   accordance with point 1 may have on the corresponding
                           ( 96/C 247/ 17 )                                   clauses of the contracts for the opening of a current
                                                                              account credit facility , concluded ' downstream ' by
                                                                              member banks with individual customers, since , as a
An action against the Kingdom of Spain was brought before                     group , the banks belonging to the ABI may be regarded ,
the Court of Justice of the European Communities on                           within the meaning and for the purposes of Article 86 of
25 June 1996 by the Commission of the European                                the Treaty, as holding a joint dominant position in the
Communities, represented by Richard B. Wainwright and                         national credit market, whose specific application of the
Fernando Castillo de la Torre, with an address for service in                 rules in question ( in connection with determination of
Luxembourg at the office of Carlos Gomez de la Cruz,                          the interest payable on the loan ) is regarded as an
Wagner Centre .                                                               abuse;
 ---pagebreak---  No C 247/ 10           EN                 Official Journal of the European Communities                                      24 . 8 . 96
 3 . Whether the NBU laid down by the ABI for its members                      points 8 and 9 of the Annex thereto, save in respect of
      in relation to the 'all-embracing' guarantee covering the                mercury and lead,
      credit facility — since they are applied in a uniform and
      binding manner by the member banks — are, taken as a            — order the Italian Republic to pay the costs of the
      whole, compatible with Article 85 of the Treaty, in                  proceedings .
      relation to the individual clauses discussed in the
      grounds of this order, in that they are liable adversely to
      affect trade between the Member States and have as              Pleas in law and main arguments adduced in support:
      their object and effect the prevention , restriction or
      distortion of competition within the Common                     Article 189 of the EC Treaty, in providing that a directive is
      Market;                                                         binding, as to the result to be achieved, upon the Member
                                                                      State to which it is addressed , places Member States under
4 . What effects any finding of incompatibility in                    an obligation to comply with the time-limits set by directives
      accordance with point 3 may have on the corresponding           for their implementation . In the present case, when the
     clauses of the ' all-embracing' guarantee agreements and         time-limit expired on 5 November 1981 , the Italian
     on the agreements themselves concluded 'downstream '             Republic had not adopted the measures necessary to comply
                                                                      in full with Directive 79/923/EEC .
      by individual banks, since, as a group, the banks
      belonging to the ABI may be regarded , within the
     meaning and for the purposes of Article 86 of the Treaty,        (') OJ No L 281 , 10 . 11 . 1979 , p . 47 .
     as holding a joint dominant position in the national
     credit market, whose specific application of the rules in
     question is regarded as an abuse .
(') Associazione Bancaria Italiana .
                                                                     Reference for a preliminary ruling by the Tribunale di
                                                                     Genova by order of that court of 1 8 June 1 996 EDIS-Edilizia
                                                                     Industriale Siderurgica Sri ( formerly EDIS SpA ) v. Ministero
                                                                                                  delle Finanze
                                                                                               ( Case C-231 /96 )
Action brought on 28 June 1996 by the Commission of the                                          ( 96/C 247/20 )
    European Communities against the Italian Republic
                         ( Case C-225/96 )                           Reference has been made to the Court of Justice of the
                           ( 96/C 247/19 )                           European Communities by order of 18 June 1996 of the
                                                                     Tribunale di Genova ( District Court, Genoa ), which was
                                                                     received at the Court Registry on 8 July 1996 , for a
An action against the Italian Republic was brought before            preliminary ruling in the case of EDIS-Edilizia Industriale
the Court of Justice of the European Communities on                  Siderurgica Sri ( formerly EDIS SpA ) v. Ministero delle
28 June 1996 by the Commission of the European                       Finanze on the following questions :
Communities, represented by Antonio Aresu of its Legal
Service, acting as Agent, with an address for service in             1 . For the purposes of amplifying and clarifying the ruling
Luxembourg at the office of Carlos Gomez de la Cruz, also                 given in the judgment of 20 April 1 993 in Joined Cases
of the Legal Service, Wagner Centre, Kirchberg .                          C-71 /91 and C-178/91 Ponente Carni SpA v.
                                                                          Amministrazione delle Finanze dello Stato ('), must the
The applicant claims that the Court should :                              provisions of the Treaty be interpreted as precluding the
                                                                          introduction and/or the retention by a Member State of
                                                                          a national provision such as that introduced by the
— declare that the Italian Republic has failed to fulfil its
                                                                          Italian legislature in paragraph 2 of Article 13 of Decree
     obligations under the EC Treaty, by :
                                                                          No 641 of the President of the Republic of 26 October
                                                                          1972 where the effect of the application of that
     — not designating waters as needing protection or                    provision is to limit the temporal effects of a judgment
         improvement in order to support shellfish life and               given by the Court of Justice ?
         growth, in accordance with Article 4 of Directive
         79/923/EEC ('), and/or not communicating such               2 . Is Article 5 of the EC Treaty, as interpreted in the
         designations to the Commission , pursuant to                     Court's case-law, compatible with a national provision
         Article 13 of that Directive,
                                                                          ( Article 1 3 of Presidential Decree No 641 /72 ), which, as
                                                                          regards the procedural rules relating to judicial actions
     — not establishing programmes for the reduction of                   seeking to secure repayment of charges paid in breach of
         pollution, in accordance with Article 5 of Directive             Council Directive 69/335/EEC ( 2 ), provides for a
         79/923/EEC ,                                                     three-year prescription period running from the date of
                                                                          payment, where such prescription period is not laid
     — not setting values, in accordance with Article 3 of                down by national law for claims for the recovery of sums
         Directive 79/923/EEC, for the parameters listed at               undulv paid as between private persons ?