CELEX: C2000/149/35
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-75/00 P: Appeal brought on 2 March 2000 by Acciaierie di Bolzano SpA against the judgment delivered on 16 December 1999 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-158/96 between Acciaierie di Bolzano SpA and Commission of the European Communities

C 149/20                EN                    Official Journal of the European Communities                                   27.5.2000
— order Ireland to pay the costs.                                        1998 without Ireland having enacted the provisions necessary
                                                                         to comply with the directive referred to in the conclusions of
                                                                         the Commission.
Pleas in law and main arguments
                                                                         (1) OJ L 333, 04.12.1997, p. 1.
Article 249 EC (ex Article 189 of the EC Treaty) under which             (2) Council Directive 76/769/EEC of 27 July 1976 (OJ L 262,
a directive shall be binding as to the result to be achieved,                27.09.76, p. 201).
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 1 August
1998 without Ireland having enacted the provisions necessary
to comply with the directive referred to in the conclusions of
the Commission.
                                                                         Reference for a preliminary ruling by the Verwaltungsge-
( 1) OJ L 140, 12.05.1998, p. 10.                                        richtshof by order of that court of 17 February 2000 in
(2) Council Directive 93/43/EEC of 14 June 1993 on the hygiene of        the case of DEVELOP Baudurchführungs- und Stadt-
     foodstuffs (OJ L 175, 19.07.1993, p. 1.                             entwicklungs GmbH against Finanzlandesdirektion für
                                                                                   Wien, Niederösterreich und Burgenland
                                                                                                  (Case C-71/00)
                                                                                                 (2000/C 149/34)
Action brought on 29 February 2000 by the Commission                     Reference has been made to the Court of Justice of the
         of the European Communities against Ireland                     European Communities by order of the Verwaltungsgerichts-
                                                                         hof (Higher Administrative Court) of 17 February 2000,
                            (Case C-69/00)                               received at the Court Registry on 2 March 2000, for a
                                                                         preliminary ruling in the case of DEVELOP Baudurchführungs-
                                                                         und Stadtentwicklungs GmbH v Finanzlandesdirektion für
                           (2000/C 149/33)                               Wien, Niederösterreich und Burgenland on the following
                                                                         question:
An action against Ireland was brought before the Court of
Justice of the European Communities on 29 February 2000 by               Do payments which an acquirer of dividend rights in a capital
the Commission of the European Communities, represented                  company makes not on its own behalf but on behalf of its
by Mr Michael Shotter, a member of its Legal Service, acting as          parent company constitute a ‘contribution of assets of any
agent, with an address for service at the office of Mr Carlos            kind’ within the meaning of Article 4(1)(d) of Council Directive
Gómez de la Cruz, a member of its Legal Service, at the                 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on
Wagner Centre, Kirchberg, Luxembourg.                                    the raising of capital?
The Applicant claims that the Court should:                              (1) OJ 1969 L 249, p. 25.
— declare that by failing to adopt the laws, regulations
      or administrative provisions necessary to comply with
      Directive 97/56/EC (1) of the European Parliament and of
      the Council of 20 October 1997 amending for the 16th
      time Directive 76/769/EEC on the approximation of the
      laws, regulations and administrative provisions of the
      Member States relating to restrictions on the marketing and        Appeal brought on 2 March 2000 by Acciaierie di Bolzano
      use of certain dangerous substances and preparations (2) or,       SpA against the judgment delivered on 16 December
      in any event, by failing to inform the Commission of those         1999 by the Fifth Chamber, Extended Composition, of
      measures, Ireland has failed to fulfil its obligations under       the Court of First Instance of the European Communities
      that Directive; and                                                in Case T-158/96 between Acciaierie di Bolzano SpA and
                                                                                  Commission of the European Communities
— order Ireland to pay the costs.
                                                                                                 (Case C-75/00 P)
Pleas in law and main arguments                                                                  (2000/C 149/35)
Article 249 EC (ex Article 189 of the EC Treaty) under which             An appeal against the judgment delivered on 16 December
a directive shall be binding as to the result to be achieved,            1999 by the Fifth Chamber, Extended Composition, of the
upon each Member State, carries by implication an obligation             Court of First Instance of the European Communities in Case
on the Member States to observe the period for compliance                T-158/96 between Acciaierie di Bolzano SpA and Commission
laid down in the directive. That period expired on 4 December            of the European Communities (Italian Republic and Falck SpA,
 ---pagebreak--- 27.5.2000              EN                     Official Journal of the European Communities                                      C 149/21
interveners) was brought before the Court of Justice of the              — Breach of the rule of law which makes the incompatibility
European Communities on 2 March 2000 by Acciaierie di                         of ECSC aid dependent on changes in competitive con-
Bolzano SpA, represented by Bruno Nascimbene, with an                         ditions. Absence of reasons regarding validity and compati-
address for service at 36, Rue de Wiltz, Luxembourg.                          bility of the aid;
                                                                         — Breach of the procedural rules governing inter partes
The appellant claims that the Court should:                                   proceedings, to the detriment of the appellant’s interests.
1. Set aside the judgment of the Court of First Instance of
    the European Communities in Case T-158/96 between                    (1) OJ 1996 L 274, p. 30.
    Acciaierie di Bolzano SpA and Commission of the Euro-
    pean Communities (Italian Republic and Falck SpA, inter-
    veners);
2. By so doing, annul Commission Decision 96/617/ECSC of
    17 July 1996 concerning aid granted by the Autonomous
    Province of Bolzano (Italy) to Acciaierie di BoIzano (1).
                                                                         Action brought on 2 March 2000 by the Commission of
In the alternative                                                         the European Communities against the Italian Republic
3. In the event that the Court of Justice should decide that it                                    (Case C-78/00)
    cannot make a decision as to the status of the measure, set
    aside the judgment of the Court of First Instance and refer
    the case to another sitting of the Court of First Instance,                                   (2000/C 149/36)
    indicating the points of law upheld in the present appeal.
                                                                         An action against the Italian Republic was brought before the
4. Make any other decisions it may deem necessary.                       Court of Justice of the European Communities on 2 March
                                                                         2000 by the Commission of the European Communities,
5. Order the Commission to pay the costs, including those                represented by Enrico Traversa, Legal Adviser, acting as Agent,
    incurred at first instance.                                          with an address for service in Luxembourg at the office of
                                                                         Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Pleas and main arguments                                                 The applicant claims that the Court should:
                                                                         a) Declare that, by providing that, in the case of a category of
The contested judgment should be set aside on the following                   taxpayer whose tax situation for 1992 shows a credit
grounds:                                                                      balance, such persons be belatedly issued with Government
                                                                              bonds (titoli di Stato) rather than VAT refunds, the Italian
— Failure to declare that the rights of the defence had                       Republic has failed to fulfil its obligations under Articles
    been infringed by the administrative decision and the                     17 and 18 of Sixth Council Directive 77/388/EEC of
    inconsistency of the decision at issue;                                   17 May 1977 on the harmonisation of the laws of the
                                                                              Member States relating to turnover taxes (1);
— Breach of the prohibition on making decisions containing
                                                                         b) Order the Italian Republic to pay the costs of the proceed-
    sanctions and of the principle of proportionality; absence/
    inadequacy/inconsistency of the reasons stated in that                    ings.
    respect;
— Invalid calculation of the interest and inadequate reasons             Pleas in law and main arguments
    stated in that respect;
                                                                         According to the Commission, the Italian State has failed to
— Breach of rules on limitation periods. Absence and inad-               fulfil its obligation to issue VAT refunds to taxpayers whose
    equacy of reasons in that respect;                                   tax balance for the 1992 tax year shows a credit situation in
                                                                         excess of 100 million as a result of intra-Community trans-
                                                                         actions accounting for more than 10 % of their total taxable
— Breach of the prohibition on applying Community rules                  transactions for that year. The Italian State has thereby
    retroactively. Failure to state reasons in that respect;             deprived that category of person of the normal exercise of the
                                                                         right to a refund, a right which constitutes an ‘essential
— Breach of the legal expectations held by Acciaierie di                 element’ of the entire common system of value added tax and
    Bolzano that it would not have to repay the aid and of the           restriction of which constitutes a serious infringement of
    principles of good faith and cooperation;                            Article 17 of the Sixth Directive.