CELEX: C1997/094/11
Language: en
Date: 1997-03-22 00:00:00
Title: Action brought on 15 January 1997 by the Commission of the European Communities against the Hellenic Republic (Case C-8/97)

22 . 3 . 97               EN                    Official Journal of the European Communities                                  No C 94/5
Reference for a preliminary ruling by the Fourth Chamber                   in any way constitute a State aid incompatible with the
of the Commissione Tributaria Provinciale di Firenze, by                   common market, because, contrary to the Commission's
order of that court of 18 October 1996 in the case of                      assertions, the State has not made any grant of aid, either
Manifattura Italiana Nonwoven SpA v. Direzione Regiona­                    directly or indirectly, which distorts or threatens to distort
            le delle Entrate (Florence Office, Tuscany)                    competition by affecting trade.
                             (Case C-4/97)
                               ( 97/C 94/09 )                              None of the arguments of the Commission, which alleges
                                                                           a use of State resources which distorts competition and
                                                                           affects trade, hits the mark; the provision adopted, as a
Reference has been made to the Court of Justice of the                     temporary measure, to buffer the increase in the price of
European Communities by an order of the Fourth                             diesel fuel in Italy, in favour both of Italian hauliers
Chamber of the Commissione Tributaria Provinciale di Fi­
                                                                           carrying goods by road for hire or reward and also,
renze ( Provincial Tax Court, Florence ) of 18 October                     similarly, for non-Italian Community hauliers actually hit
1996, which was received at the Court Registry on                          by the higher tax charged on diesel fuel in Italy, is not
9 January 1997, for a preliminary ruling in the case of                    open to challenge under Articles 92 and 93 of the Treaty.
Manifattura Italiana Nonwoven SpA v. Direzione Regiona­                    Consequently, the Commission's decision must be
le delle Entrate — Toscana, Sezione di Firenze (Tuscany                    annulled .
Regional Tax Directorate, Florence Office ), on the
following question:
                                                                           In the alternative, with reference to the obligation to
Is a statutory tax on the net assets of companies with                     recover sums laid down in Article 2 of the contested
share capital which has effects economically equivalent to                 decision, the Italian Government cannot but point out that
those of an indirect tax on capital contributions                          such recovery is absolutely impossible . It is impossible for
compatible with Community law and in particular with                       two sets of reasons: first of all, because asking the hauliers
Directive 69/335/EEC H ?                                                   to repay those sums would cause an uprising that would
                                                                           trigger off a social conflict from which the State could
( 1 ) Official Journal, English Special Edition 1969 (II ), p. 412.        only emerge as the loser; and second, because the
                                                                           operations which would be technically necessary to
                                                                           recover those sums would run into problems which may
                                                                           reasonably be considered insuperable, given the huge
                                                                           number of persons concerned and the division of the
                                                                           credit between different taxes and rates of taxes .
Action brought on 10 January 1997 by the Italian
Republic against the Commission of the European                            Consequently, even if the application has to be dismissed
                              Communities                                  in so far as it concerns Article 1 of the contested decision
                             ( Case C-6/97)                                relating to the compatibility of the system in question with
                                                                           Article 92 of the Treaty, the application, without prejudice
                               ( 97/C 94/10                                to the Italian Government's undertaking not to repropose
                                                                           or continue the system in dispute, should be upheld and
An action against the Commission of the European                           by annulment of the contested decision in so far as it
Communities was brought before the Court of Justice of                     orders recovery of the credit granted.
the European Communities on 10 January 1997 by the
Italian Republic, represented by Professor Umberto
Leanza, acting as Agent, assisted by Oscar Fiumara, Avvo­
cato dello Stato, with an address for service in
Luxembourg at the Italian Embassy, 5 rue Marie-Adelaide .
                                                                           Action brought on 15 January 1997 by the Commission of
The applicant claims that the Court should :                                the European Communities against the Hellenic Republic
                                                                                                   ( Case C-8/97
— principally, annul the decision of the Commission of
      the European Communities of 22 October 1996 C(96 )                                             97/C 94/11 )
       3078 final in its entirety,
— in the alternative, annul that decision in so far as it                  An action against the Hellenic Republic was brought
       imposes the obligation to recover the aid together with             before the Court of Justice on 15 January 1997 by the
       interest,                                                           Commission of the European Communities, represented
                                                                           by Dimitrios Gouloussis, Legal Adviser to the
— in either case, order the Commission to pay the costs.                   Commission, with an address for service in Luxembourg
                                                                           at the office of Carlos Gomez de la Cruz, of the
Pleas in law and main arguments adduced in support:                        Commission's Legal Service, Wagner Centre, Kirchberg.
As regards the full compatibility with the Treaty of the                   The applicant claims that the Court should declare that,
system introduced in Italy for the years in question, the                  by failing to adopt or, in the alternative, to communicate
Italian Government claims that the system itself does not                  to the Commission, within the period prescribed, the laws,
 ---pagebreak--- No C 94/6            1 EN |                   Official Journal of the European Communities                                   22 . 3 . 97
regulations or administrative provisions necessary to                    national court must not take account of those internal
comply fully with Council Directive 90/434/EEC of 23 July                provisions, even when classifying the legal relationship on
1990 on the common system of taxation applicable to                      the basis of which a national of a Member State calls on
mergers, divisions, transfers of assets and exchanges of                 the finance administration to refund sums that were paid
shares concerning companies of different Member                          in contravention of the said Article 10 of Directive 69/
States ('), the Hellenic Republic has failed to fulfil its               335/EEC .
obligations under the EC Treaty.
                                                                         (') OJ No L 249 , 3 . 10 . 1969 , p . 25 .
Pleas in law and main arguments adduced in support:
Under Article 12 ( 1 ) of the Directive, the Member States
were to comply with the provisions of the Directive not
later than 1 January 1992 and to inform the Commission
thereof. The Greek authorities acknowledge that they have                References for a preliminary ruling by the Tribunal
not yet adopted the necessary provisions by reason of                    Superior de Justicia de Catalunya by orders of that court
internal difficulties in the Greek legal system and the                  of 3 and 9 December 1996 in the cases of ( i ) Fuerzas
failure so far to adopt, at Community level, the Tenth                   Eléctricas de Catalunya SA (Fecsa) and (ii ) Autopistas
Directive on cross-border company mergers and the                        Concesionaria Española SA against Tribunal Económico­
Regulation on the statute for a European company.                        Administrativo Regional de Catalunya and Departament
                                                                             d'Economia i Finances de la Generalitat de Catalunya
The Commission observes that those reasons cannot                                       ( Cases C-31/97 and C-32/97)
exempt the Hellenic Republic from its obligation to                                                   ( 97/C 94/ 13 )
implement the Directive .
                                                                         Reference has been made to the Court of Justice of the
(') OJNoL225 , 20 . 8 . 1990 , p . 1 .
                                                                         European Communities by orders of the Tribunal Superior
                                                                         de Justicia de Catalunya ( High Court of Justice,
                                                                         Catalunya ) of 3 and 9 December 1996 , which was
                                                                         received at the Court Registry on 23 January 1997, for a
                                                                         preliminary ruling in the cases of ( i ) ( Case C-31 /97)
                                                                         Fuerzas Eléctricas de Catalunya SA ( Fecsa ) and ( ii ) ( Case
References for preliminary rulings by the Pretura di Roma                C-32/97) Autopistas Concesionaria Española SA against
by orders of that court of 17 December 1996 in the cases                 Tribunal Economico-Administrativo Regional de Catalun­
of Ministero delle Finanze v. 1 . IN.CO.GE.'90 srl; 2 . Idel­
                                                                         ya and Departament d'Economia i Finances de la Genera­
gard srl; 3 . IRIS '90 srl; 4. Camed srl; 5 . PPA — Pomezia              litat de Catalunya on the following question:
Progetti Appalti srl; 6. Edilcam srl; 7. Impresa A. Cecchini
EC srl; 8 . EMO srl; 9. Emoda srl; 10. Sappesi srl; 11 .                 Having regard to Articles 11 ( b ) and 12 of Council
ING. Luigi Martini srl; 12 . Giacomo srl and 13 . Mafar srl              Directive 69/335/EEC ( 1 ) of 17 July 1969, is the purported
                  ( Cases C- 10/97 to C-22/97)                           levying by the Spanish Administration of the duty on
                          ( 97/C 94/12 )                                 transfers of assets and documented legal transactions on
                                                                         records of redemption ( repayment of loans ) in conformity
                                                                         with Community law, or on the contrary does it conflict
Reference has been made to the Court of Justice of the                   with Community law with the result that it must be
European Communities by orders of the Pretura di Roma                    disallowed as being incompatible therewith ?
( Magistrate's Court, Rome ) of 17 December 1996 , which
were received at the Court Registry on 16 January 1997,                  (') OJ No L 249, 3 . 10 . 1969 , p. 25 .
for preliminary rulings in the cases of Ministero delle Fi­
nanze v. 1 . IN. CO . GE. ' 90 srl ; 2 . Idelgard srl ; 3 . IRIS ' 90
srl; 4 . Camed srl ; 5 . PPA — Pomezia Progetti Appalti srl;
6 . Edilcam srl ; 7. Impresa A. Cecchini EC srl; 8 . EMO srl ;
9 . Emoda srl; 10 . Sappesi srl; 11 . ING. Luigi Martini srl ;
12 . Giacomo srl and 13 . Mafar srl, on the following                    Reference for a preliminary ruling from the Rechtbank
question :                                                               van Koophandel by judgment of that court of 10 January
                                                                         1997 in the case of Colim NV against Bigg's Continent
Whether the imcompatibility with Article 10 of Council                                                  Noord NV
Directive 69/335/EEC (') of 17 July 1969 , as interpreted                                           ( Case C-33/97)
by the Court of Justice in its judgment of 20 April 1993
( in Joined Cases C-71/91 and C-178/91 Ponenti Carni and                                              ( 97/C 94/14 )
Cispadana Costruzione v. Amministrazione delle Finanze
dello Stato [ 1993 ] ECR I, p. 1915 ), of Article 3 ( XVIII )            Reference has been made to the Court of Justice of the
and (XIX ) of Decree Law No 853 of 19 December 1984,                     European Communities by a judgment of- the Rechtbank
converted into Law No 17 of 17 February 1985 , means,                    van Koophandel ( Commercial Court ) of 10 January 1997,
on the basis of the criteria for integration of national law             which was received at the Court Registry on 27 January
and Community law which that Court has laid down, that                    1997, for a preliminary ruling in the case of Colim NV
the said Article 3 ( XVIII ) and ( XIX ) must be set aside in            against Bigg's Continent Noord NV on the following
their entirety, and in particular whether it means that the              questions :