CELEX: C2004/021/19
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-429/03: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Massa e Carrara — Sezione III — by order of that Court of 21 July 2003 in the case brought by Duegi Trasporti S.r.l. against Comune di Carrara

24.1.2004              EN                        Official Journal of the European Union                                            C 21/11
Reference for a preliminary ruling by the Commissione                          (the ‘tax on marble’) on goods transported out of one
Tributaria Provinciale di Massa e Carrara — Sezione III —                      municipality and intended for other regions of the same
by order of that Court of 21 July 2003 in the case brought                     State, or does not that particular charge instead involve
by Roberto Lorenzoni against 1) Comune di Carrara, and                         less favourable treatment of goods intended for those
                   2) Bipielle Riscossoni S.p.a.                               regions in comparison with goods exported in other
                                                                               Member States, and does not this pecuniary charge
                                                                               constitute an impediment to free movement of goods
                         (Case C-428/03)
                                                                               throughout the European market?
                          (2004/C 21/18)
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria Provinciale di Massa e Carrara — Sezione III — (Provincial
Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,              Reference for a preliminary ruling by the Commissione
received at the Court Registry on 7 October 2003, for a                  Tributaria Provinciale di Massa e Carrara — Sezione III —
preliminary ruling in the case brought by Roberto Lorenzoni              by order of that Court of 21 July 2003 in the case brought
against 1) Comune di Carrara, and 2) Bipielle Riscossoni S.p.a.              by Duegi Trasporti S.r.l. against Comune di Carrara
on the following questions:
                                                                                                  (Case C-429/03)
(A) Does a tax, levied by a municipal authority in one
      Member State on goods exported to another Member
      State on account of their leaving a municipality in the                                      (2004/C 21/19)
      first Member State, constitute a charge having equivalent
      effect to customs duties on exports, even though that
      fiscal charge also applies to goods leaving that munici-
      pality for another part of that Member State?
                                                                         Reference has been made to the Court of Justice of the
(B) Are the legislative provisions by virtue of which that tax           European Communities by order of the Commissione Tribu-
      is levied compatible with Community law? In particular,            taria Provinciale di Massa e Carrara — Sezione III — (Provincial
      is the provision laid down in the Law of the Italian State         Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
      No 749 of 15 July 1911 (as subsequently amended and                received at the Court Registry on 7 October 2003, for a
      supplemented) by virtue of which the Comune di Carrara             preliminary ruling in the case brought by Duegi Trasporti S.r.l.
      imposes and levies a tax on marble (and derivatives)               against Comune di Carrara on the following questions:
      excavated in its territory and transported out of it (the ‘tax
      on marble’) compatible with, or contrary to, Article 23            (A) Does a tax, levied by a municipal authority in one
      (ex Article 9) of the Treaty establishing the European                   Member State on goods exported to another Member
      Communities, which provides that ‘[t]he Community                        State on account of their leaving a municipality in the
      shall be based upon a customs union which shall cover                    first Member State, constitute a charge having equivalent
      all trade in goods and which shall involve the prohibition               effect to customs duties on exports, even though that
      between Member States of customs duties on imports                       fiscal charge also applies to goods leaving that munici-
      and exports and of all charges having equivalent effect’,                pality for another part of that Member State?
      and Article 25 (ex Article 12), which provides that
      ‘[c]ustoms duties on imports and exports and charges               (B) Are the legislative provisions by virtue of which that tax
      having equivalent effect shall be prohibited between                     is levied compatible with Community law? In particular,
      Member States. This prohibition shall also apply to                      is the provision laid down in the Law of the Italian State
      customs duties of a fiscal nature’?                                      No 749 of 15 July 1911 (as subsequently amended and
                                                                               supplemented) by virtue of which the Comune di Carrara
(C) Is this tax on marble compatible with Articles 81 EC to                    imposes and levies a tax on marble (and derivatives)
      89 EC (ex Articles 85 to 90 and 92 to 94 of the EC                       excavated in its territory and transported out of it (the ‘tax
      Treaty), which lay down a series of rules intended to                    on marble’) compatible with, or contrary to, Article 23
      create a system which will ensure that competition on                    (ex Article 9) of the Treaty establishing the European
      the common market is not distorted and which will                        Communities, which provides that ‘[t]he Community
      remove subsisting impediments in order to attain that                    shall be based upon a customs union which shall cover
      objective?                                                               all trade in goods and which shall involve the prohibition
                                                                               between Member States of customs duties on imports
(D) If the answer to the previous question is ‘No’ — having                    and exports and of all charges having equivalent effect’,
      regard to the fact that, in respect of the municipality in               and Article 25 (ex Article 12), which provides that
      which the tax on marble (and derivatives) is levied the                  ‘[c]ustoms duties on imports and exports and charges
      Treaty provides no special measures in favour of the                     having equivalent effect shall be prohibited between
      Italian Republic — is it compatible with Community law                   Member States. This prohibition shall also apply to
      for a legislative provision to impose a pecuniary charge                 customs duties of a fiscal nature’?
 ---pagebreak--- C 21/12                EN                      Official Journal of the European Union                                        24.1.2004
(C) Is this tax on marble compatible with Articles 81 EC to            In particular:
     89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
     Treaty), which lay down a series of rules intended to             1.   Are only ‘traditional’ homeopathic medicinal products
     create a system which will ensure that competition on                  subject to the special, simplified registration procedure
     the common market is not distorted and which will                      under Article 14 et seq. of Directive 2001/83/EC?
     remove subsisting impediments in order to attain that
     objective?                                                        2.   If the answer to this question is in the affirmative, can a
                                                                            medicinal product also be considered ‘traditional’ if it is
(D) If the answer to the previous question is ‘No’ — having                 manufactured using bibliographically identified homeo-
     regard to the fact that, in respect of the municipality in             pathic stocks without having been in actual homeopathic
     which the tax on marble (and derivatives) is levied the                use in that combination prior to the registration applied
     Treaty provides no special measures in favour of the                   for;
     Italian Republic — is it compatible with Community law                 or:
     for a legislative provision to impose a pecuniary charge
     (the ‘tax on marble’) on goods transported out of one                  Does the second indent of the second sentence of
     municipality and intended for other regions of the same                Article 15 of Directive 2001/83/EC permit a Member
     State, or does not that particular charge instead involve              State to require that, for registration of a homeopathic
     less favourable treatment of goods intended for those                  medicinal product that is manufactured using a number
     regions in comparison with goods exported in other                     of homeopathic stocks, a bibliography must be produced
     Member States, and does not this pecuniary charge                      that refers to the combination preparation as such?
     constitute an impediment to free movement of goods
     throughout the European market?
                                                                       (1) OJ L 311, p. 67.
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Wien) by order of that Court of 27 October 2003
Reference for a preliminary ruling by the Verwaltungsge-               in the case of STRABAG AG against Österreichische
richt Berlin by order of that Court of 28 August 2003 in                                        Bundesbahnen
the case of meta Fackler KG against Federal Republic of
                            Germany
                                                                                               (Case C-462/03)
                        (Case C-444/03)                                                         (2004/C 21/21)
                         (2004/C 21/20)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Bundesvergabeamt
                                                                       (Wien) (Federal Procurement Office, Vienna) of 27 October
                                                                       2003, received at the Court Registry on 4 November 2003,
                                                                       for a preliminary ruling in the case of STRABAG AG against
Reference has been made to the Court of Justice of the                 Österreichische Bundesbahnen on the following questions:
European Communities by order of the Verwaltungsgericht
Berlin (Administrative Court Berlin) of 28 August 2003,
received at the Court Registry on 21 October 2003, for a               1.   Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
preliminary ruling in the case of meta Fackler KG against                   preted as meaning that, contrary to the other factual
Federal Republic of Germany on the following questions:                     situations covered by Article 2(2) of the Directive, in the
                                                                            area of transport ‘merely’ the operation of networks is to
                                                                            be considered a sectoral activity?
Is the rule contained in Paragraph 39(2) No 7a of the                  2.   Which activities fall within the scope of ‘the operation of
Arzneimittelgesetz (Law on Medicinal Products, ‘AMG’) com-                  networks providing a service to the public in the field of
patible with Directive 2001/83/EC of the European Parliament                transport by railway’ under Article 2(2)(c) of Directive
and of the Council of 6 November 2001 (1) (‘Directive 2001/                 93/38/EEC? To what extent are, in particular, measures
83/EC’) in so far as it refuses registration for a medicinal                in the field of infrastructure to be subsumed under this
product composed of bibliographically identified homeopathic                heading? To what extent are such measures in the field of
constituents if its ‘administration as a homeopathic medicinal              infrastructure to be classified under the heading ‘provision
product is not generally known’?                                            of networks’?