CELEX: C2001/150/32
Language: en
Date: 2001-05-19 00:00:00
Title: Case C-136/01 P: Appeal brought on 23 March 2001 by Autosalone Ispra Snc dei Fratelli Rossi, established in Ispra, against the order made on 17 January 2001 by the Second Chamber of the Court of First Instance of the European Communities in Case T-124/99 between Autosalone Ispra Snc dei Fratelli Rossi and European Atomic Energy Community, represented by the Commission of the European Communities

19.5.2001               EN                     Official Journal of the European Communities                                      C 150/17
—     Order the Italian Republic to pay the costs.                        was brought before the Court of Justice of the European
                                                                          Communities on 23 March 2001 by Autosalone Ispra Snc dei
                                                                          Fratelli Rossi, represented by Francandrea Venuto, of the Busto
Pleas and principal arguments                                             Arsizio Bar, with an address for service at the Chambers of
                                                                          Mr Kronshagen, 22 Rue Marie Adélaïde.
(a)   Article 94 of Royal Decree No 1127 of 29 June 1939
      prevents industrial property consultants properly pursu-            The appellant claims that the Court of Justice should:
      ing their profession in other Member States but not
      entered on the requisite register in Italy from acting,
                                                                          —     Set aside in its entirety the order of the Court of First
      occasionally and on a temporary basis, as agents in                       Instance contested in these proceedings:
      dealings with the Patent Office on behalf of clients who
      approach them for that purpose.
                                                                                —     Find and declare that the abovementioned order was
      In the Commissions’s view, that requirement is contrary                         made in breach of Article 111, Chapter II, of the
      to Article 49 of the EC Treaty: although it is true that, in                    Rules of Procedure of the Court of First Instance of
      the absence of harmonisation, Member States are in                              the European Communities;
      principle competent to define the requirements for access
      to the practice of an activity, that does not mean that                   —     In any event reject the objection raised by the
      they are released from the requirement of upholding the                         Commission of the European Communities before
      fundamental freedoms guaranteed by the Treaty, in                               the Court of First Instance of the European Com-
      particular as provided by Article 49.                                           munities that the action is time-barred;
(b) For entry on the register of patent consultants authorised                  —     In any event find and declare that the application
      to practise in Italy, Article 2 of Ministerial Decree 342/95                    originating the proceedings before the Court of First
      imposes the further requirement of having a residence or                        Instance of the European Communities in Case
      a professional office in Italy, except in the case of citizens                  T-124/99 is admissible;
      of States which allow Italian citizens to be entered on the
      corresponding registers without fulfilling that require-            —     Grant in its entirety the form of order sought by the
      ment.                                                                     applicant at first instance:
      It is clear that a consultant intending to practise alone in              —     Find and declare that the EAEC is liable under the
      Italy would find it very difficult to establish a professional                  second paragraph of Article 188 of the EAEC Treaty
      practice in that country. He would feel unable to proceed,                      on the basis of the facts and documents relied on by
      for which reason in this case too that there is clearly an                      the applicant in those proceedings, which are to be
      unjustified obstacle to observance of the principle of                          deemed to be reproduced in their entirety in this
      freedom to provide services.                                                    notice of appeal;
                                                                                —     Consequently, order the EAEC, represented by the
                                                                                      Commission of the European Communities, to pay
                                                                                      to the persons vested with legal representation of
                                                                                      the appellant, Autosalone Ispra Snc dei Fratelli Rossi,
                                                                                      the principal sum of ITL 1 245 000 000 , adjusted
                                                                                      by way of monetary revaluation, with interest
Appeal brought on 23 March 2001 by Autosalone Ispra                                   accruing thereon until due payment, or such other
Snc dei Fratelli Rossi, established in Ispra, against the                             sum as may be held to be fair;
order made on 17 January 2001 by the Second Chamber
of the Court of First Instance of the European Communi-                         —     The decision given should be enforceable and
ties in Case T-124/99 between Autosalone Ispra Snc dei                                include an order that the defendant pay the costs at
Fratelli Rossi and European Atomic Energy Community,                                  both instances;
represented by the Commission of the European Com-
                              munities                                          —     By way of preparatory inquiry, grant the preparatory
                                                                                      measures requested by the applicant before the
                         (Case C-136/01 P)                                            Court of First Instance.
                          (2001/C 150/32)
                                                                          Pleas in law and main arguments
An appeal against the order made on 17 January 2001 by the
Second Chamber of the Court of First Instance of the European             The appellant submits that the order made by the Court of
Communities in Case T-124/99 between Autosalone Ispra Snc                 First Instance is vitiated for the following reasons:
dei Fratelli Rossi and European Atomic Energy Community,
represented by the Commission of the European Communities,                —     Failure to hear the views of the Advocate General.
 ---pagebreak--- C 150/18               EN                    Official Journal of the European Communities                                         19.5.2001
—     The Court of First Instance decided to rule on the                Action brought on 30 March 2001 by the Commission of
      admissibility of the application without appraising all the       the European Communities against the Kingdom of Spain
      relevant matters of fact and of law.
—     The Court of First Instance infringed upon the applicant’s                                   (Case C-143/01)
      right of action by failing to take into consideration
      whether or not it was possible for the parties to have
      proper access to the facts relevant to the case, which were                                  (2001/C 150/34)
      in fact not available until 15 May 1995 for objective
      reasons and because of the conduct of the Community.
      The appellant also alleges that the limitation period laid        An action against the Kingdom of Spain was brought before
      down by the abovementioned provision, to which there              the Court of Justice of the European Communities on 30 March
      are no exceptions, was improperly curtailed.                      2001 by the Commission of the European Communities,
                                                                        represented by Mr Dı́az-Llanos La Roche and Mr Gómez de la
                                                                        Cruz Talegón, whose address for service in Luxembourg is that
                                                                        of Mr Gómez de la Cruz, Wagner Centre C2/254, Kirchberg.
                                                                        The applicant claims that the Court should:
Action brought on 28 March 2001 by the Commission of                    —     Declare that, by applying a reduced rate of VAT to
  the European Communities against the Italian Republic                       supplies, intra-Community acquisitions or importations
                                                                              of liquified petroleum gas, the Kingdom of Spain has
                         (Case C-142/01)                                      failed to fulfil its obligations under Article 12 of the Sixth
                                                                              VAT Directive (1)
                         (2001/C 150/33)
                                                                        —     Order the Kingdom of Spain to pay the costs.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 March
2001 by the Commission of the European Communities,
represented by Maria Patakia and Antonio Aresu, acting as               Pleas in law and main arguments
Agents.
The applicant claims that the Court should:                             The Commission does not concur with the arguments put
                                                                        forward by the Spanish authorities that butane gas is a fuel
                                                                        similar to natural gas, for which reason it should be subject to
—     Declare that, by maintaining in force Article 12(1) of Law
                                                                        the same tax system. Article 12(3)(b) of the Sixth VAT Directive
      No 81 of 8 March 1991, which makes the recognition of
                                                                        constitutes an exception and does not allow for application by
      ski monitors’ diplomas subject to a reciprocal condition,
                                                                        analogy.
      the Italian Republic has failed to fulfil its obligations
      under Council Directive 92/51/EEC (1) of 18 June 1992
      on a second general system for the recognition of
      professional education and training to supplement Direc-          Even if a supply of butane gas (sucAh gas being the fuel used
      tive 89/48/EEC (2); and                                           by social groups with limited economic means), could be
                                                                        considered as falling within the ambit of ‘cultural or social
—     Order the Italian Republic to pay the costs.                      services’ for the purposes of Annex H, to which Article 12(3)(a)
                                                                        refers, the application of a reduced rate of VAT would lack,
                                                                        even in that case, any legal basis. Paragraph 14 of Annex H to
                                                                        the directive states that such supplies of goods or services must
Pleas in law and main arguments                                         be made by ‘organisations recognised as charities by Member
                                                                        States and engaged in welfare or social security’.
Article 12(1) of Law No 81 of 8 March 1991 is incompatible
with Directive 92/51/EEC given that it imposes a condition of
reciprocity in order to obtain recognition of a diploma for ski
monitors obtained in another Member State, thereby adding               (1) Council Directive 77/388/EEC of 17 May 1977 on the harmonis-
to the directive a condition which it does not provide for.                 ation of the laws of the Member States relating to turnover taxes
                                                                            — Common system of value added tax: uniform basis of
                                                                            assessment (OJ L 145 of 13.6.1977, p. 1).
(1) OJ 1992 L 209, p. 25.
(2) OJ 1989 L 19, p. 16.