CELEX: C1996/354/44
Language: en
Date: 1996-11-23 00:00:00
Title: Reference for a preliminary ruling from the Pretura Circondariale di Bolzano, Sezione Distaccata di Vipiteno, by order of that court of 17 August 1996 in the case of Dilexport S.r.l. v. Amministrazione delle Finanze dello Stato (Case C-343/96)

No C 354/22              EN                   Official Journal of the European Communities                                      23 . 11 . 96
 — Infringement of Article 30 of the EC Treaty: the                       Security Tribunal, Bouches du Rhone] of 1 March 1996 ,
       infringement of Article 10 ( 6 ) of Directive 93/37/EEC            received at the Court Registry on 15 October 1996, for a
       amounts at the same time to an infringement of                     preliminary ruling in the case ofJ. Farias v. Caisse Regionale
       Article 30 of the EC Treaty. The same is true of the               d'Assurance Maladie du Sud-Est [South-East Regional
       preference for Lower Austrian materials and/or                     Health Insurance Fund] on the following question:
       undertakings contained in point 2.10 of the AAVB
       where the tenders involved are of equal value to other             Can a Portuguese national residing in Portugal who reached
       tenders .                                                          the age of 60 on 17 May 1992, and did not receive , in
                                                                          addition to his invalidity pension, supplementary allowance
— Infringement of Directive 88/665/EEC ( directive on                     from the Fonds National de Solidarite [National Solidarity
       review procedures ): contrary to Articles 1 and 2 ( 1 ) ( h )      Fund] solely because he was resident outside France, claim
       of the Directive, point 2.5 of the AAVB excludes ab initio         under Article 2 of Regulation ( EEC ) No 1247/92 ( ] ) that his
       and unconditionally all claims which might arise on the            entitlement was acquired before 1 June 1992 , the date of
       part of contractors in connection with an award                    entry into force of that regulation ?
       procedure .
                                                                          ( 1 ) OJ No L 136 , 19 . 5 . 1992 , p . 1 .
 ( ] ) OJ No L 199 , 9 . 8 . 1993 , p. 54.
 ( 2 ) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
                                                                          Reference for a preliminary ruling from the Pretura
Reference for a preliminary ruling by the Pretura di Roma by              Circondariale di Bolzano, Sezione Distaccata di Vipiteno,
order of that court of 2 October 1996 in the case of 1 .                 by order of that court of 17 August 1996 in the case of
CO.NA.TA. — Consorzio Nazionale Tabacchi Soc. Coop a                     Dilexport S.r.l. v. Amministrazione delle Finanze dello
r.l. and 2 . Agrindustria Sri against AIMA — Azienda di                                                    Stato
           Stato per gli Interventi sul Mercato Agricolo                                             Case C-343/96
                 ( Cases C-332/96 and C-333/96 )                                                      ( 96/C 354/44
                               ( 96/C 354/42 )
                                                                         Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                   European Communities by an order of the Pretura
European Communities by orders of the Pretura di Roma                    Circondariale di Bolzano, Sezione Distaccata di Vipiteno
[Magistrates Court, Rome] of 2 October 1996 , received at                 [District Magistrate 's Court, Bolzano, Vipiteno Division] of
the Court Registry on 8 October 1996 , for a preliminary                  17 August 1996 , which was received at the Court Registry
ruling in the case of 1 . CO.NA.TA. — Consorzio Nazionale                on 30 September 1 996 , for a preliminary ruling in the case of
Tabacchi Soc . Coop a r.l . and 2 . Agrindustria Sri against             Dilexport Sri . v. Amministrazione delle Finanze dello Stato
AIMA — Aziende di Stato per gli Interventi sul Mercato                   on the following questions :
Agricolo [State Intervention Agency] on the question of the
validity of Article 5 of Regulation ( EEC ) No 3477/93 ( ! ) of           1 . Must Community law be interpreted as precluding the
17 December 1993 in connection with the principle of the                        adoption by a Member State of a provision such as
non-retroactivity of Community legislation since it cannot                      Article 29 of Italian Law No 428 of 29 December 1990
be justified either by the previous regulations or by an                        which makes the repayment of charges levied in breach
overriding public interest that warrants the sacrifice of                       of Community law subject to time-limits for
rights acquired on the basis of previous legislation, and                       prescription or lapse and to conditions as to proof which
entails an unforeseeable modification to the detriment of                       are different from and more restrictive than those laid
subjective rights, thereby undermining the legitimate                           down in the general rules of civil law ? In particular, with
expectations of the addressees of' the measure in                               regard to the principle that the procedural conditions for
question .                                                                      exercising the right to reimbursement established by
                                                                                national law 'may not be less favourable than those
(!) OJ No L 317, 18 . 12 . 1993 , p . 30 .                                      relating to similar actions of a domestic nature', what is
                                                                                to be understood by the expression ' similar actions of a
                                                                                domestic nature '?
Reference for a preliminary ruling by the Tribunal des                   2 . Do the fundamental principles of the Community order
Affaires de Sécurité Sociale des Bouches du Rhône by                            preclude the introduction by a Member State — in a
judgment of that Tribunal of 1 March 1996 in the case of J.                     limited manner and with reference only to a specific
Farias against Caisse Régionale d'Assurance Maladie du                          sphere consisting of a homogenous category of fiscal
                                   Sud-Est                                      levies made up in particular of charges linked to the
                                                                                Community order — of special derogating provisions to
                            ( Case C-339/96 )                                   restrict and limit the right to recovery of sums unduly
                              ( 96/C 354/43 )                                   paid, thus derogating from the general conditions for
                                                                                recovery of sums unduly paid laid down in Article 2033
Reference has been made to the Court of Justice of the                          of the Civil Code ? In particular, may the principle of
European Communities by judgment of the Tribunal des                            non-discrimination be understood in a restrictive sense,
Affaires de Securite Sociale des Bouches du Rhone [Social                       and may it thus be considered that a provision of a
 ---pagebreak--- 23 . 11 . 96           EN                Official Journal of the European Communities                                 No C 354/23
     Member State such as the second paragraph of                         law and, in particular, with the Court's findings as to
     Article 29 of Law No 428 of 29 December 1990                         unacceptable requirements of proof in Case 199/82 ( San
     complies with that principle, simply because the                     Giorgio ), cited above ? In particular, are the
     conditions laid down therein for reimbursement of fiscal             interpretation and application of Article 29 compatible
     charges linked to Community law, although restrictive                with Community law, on the basis of the assumption
     in comparison with the general rules of ordinary law, are            that ' it is a well-known fact that consumer taxes are
     however less onerous in comparison with the special                  passed on' presumptive evidence is deemed to be
     conditions for reimbursement laid down in the third                  sufficient proof of passing on and therefore for the claim
     paragraph of Article 29 ?                                            for reimbursement to be dismissed ?
3 . Do the abovementioned fundamental principles of the             5 . In consequence, is it compatible with Community law
     Community order preclude the adoption by a Member                    for the national court or its expert witness to establish
     State — after numerous judgments of the Court                        that charges have been passed on , relying on those mere
     declaring various charges relating to customs duties on              presumptions, which are claimed to be evidence freely
     imports, manufacturing taxes, consumer taxes, sugar                  assessed by the court, thus systematically excluding
     premium and state taxes to be incompatible with                      applications for reimbursement, as is happening in
     Community law — of a procedural provision such as                    practice, with the result that the debtor
     Article 29 of Law No 428 , which specifically reduces the            Amministrazione never acknowledges that it has to
     possibilities of bringing proceedings for recovery of                make repayment ?
     charges which were wrongly levied in breach of
     Community law ?                                                6 . May a rule such as that laid down in the fourth and
                                                                          eighth paragraphs of Article 29 , establishing procedural
4 . Is such a law as that — supposedly introduced in order                formalities ( for example, the requirement to notify
     to make national law comply with the precepts of the                 particular departments of the debtor authority ) which
     Court of Justice — which was passed three and a half                 were never contemplated in previous cases of
     years late following the judgments of the Court in                   reimbursement considered under the relevant general
     question, thus further unjustly enriching the State                  rules, be introduced and may it be interpreted with
     responsible for the delay, compatible with Community                 retrospective effect ?
                                                   COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                             Directorate E ( East and Southern Africa ) of
                      of 16 October 1996                            Directorate-General VIII ( Development ), of the decision of
                                                                    the Commission classifying that position as a grade A 5/A 4
in Case T-36/94 : Alberto Capitanio v. Commission of the            post, of the decision to annul the vacancy notice for that post
                   European Communities C )                         in order to allow the reinstatement of an official who had
(Officials — Reinstatement — Determination of the level of          taken leave on personal grounds, and of all subsequent
         a post — Act adversely affecting an official)              and/or connected decisions adopted by the Commission in
                         ( 96/C 354/45 )                            consequence of the aforementioned decisions , in particular
                                                                    the decision rejecting the applicant's application for the post
                                                                    and the decision appointing Mr G. to that post — the Court
                                                                    of First Instance ( Fourth Chamber ), composed of: K.
                                                                    Lenaerts, President, and P. Lindh and J. D. Cooke , Judges; J.
                 (Language of the case: French)                     Palacio Gonzalez, Administrator, for the Registrar, has
                                                                    given a judgment on 16 October 1996 , in which it:
In Case T-36/94 : Alberto Capitanio, an official of the             1 . dismisses the application;
Commission of the European Communities, residing in
Brussels, represented by Jean-Noel Louis, Veronique
Leclercq, Greta-Fran^oise Parmentier and Ariane Tornel, of          2 . orders the Commission to pay the costs.
the Brussels Bar, with an address for service in Luxembourg
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener, v.
Commission of the European Communities ( Agent: Ana                 f 1 ) OJ No C 76 , 12 . 3 . 1994 .
Maria Alves Vieira ) — application for annulment of the
decision of the Commission concerning the drawing-up and
publication of vacancy notice COM/022/93 for the post of
Head of Unit 4 (Technical group on infrastructure ) of