CELEX: C1999/188/40
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-141/99: Reference for a preliminary ruling from the Hof van Beroep te Gent by judgment of that court of 13 April 1999 in the case of NV Algemene Maatschappij van Verzekeringen en Grondkrediet, now known as NV Algemene Maatschappij voor Investering en Dienstverlening (AMID), against the Belgian State

3.7.1999              EN                    Official Journal of the European Communities                                        C 188/17
Communities, represented by Frank Benyon, Legal Adviser,               (2) order Ireland to pay the costs.
acting as Agent, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.                                                             Pleas in law and main arguments
The Commission of the European Communities claims that                 The Commission considers that Ireland’s legislation, by
the Court should:                                                      imposing excise duty on carriers in respect of every passenger
                                                                       ticket on services from Ireland to other Member States (with
(1) declare that, by failing to adopt the laws, regulations and        the exception of flights to Northern Ireland) and not upon
    administrative measures necessary in order to comply               flights within Ireland (and to Northern Ireland), is incompatable
    with Council Directive 94/56/EC of 21 November 1994                with the principle of freedom to provide services as stated in
    establishing the fundamental principles governing the              Articles 59 and 62 of the Treaty and in the rules laid down in
    investigation of civil aviation accidents and incidents (1),       Article 3(1) of Regulation 2408/92 of 23 July 1992 on access
    the Grand Duchy of Luxembourg has failed to fulfil its             for Community air carriers to intra-Community air routes.
    obligations under that directive;
                                                                       With regard to Ireland’s contention that there is no infringe-
(2) order the Grand Duchy of Luxembourg to pay the costs.              ment of Regulation 2408/92 because the excise duty is
                                                                       non-discriminatory on grounds of nationality, the Commission
                                                                       is of the view that the principles governing the freedom to
Pleas in law and main arguments                                        provide services go beyond the mere prohibition of any
                                                                       discrimination on grounds of nationality. Even if national
                                                                       measures restricting that freedom apply without distinction to
Article 12 of the abovementioned directive provides that the           national providers of services and to those of other Member
Member States are to bring into force the laws, regulations            States, they are still unacceptable if they are not warranted by
and administrative provisions necessary to comply with the             mandatory requirements in the public interest, or if the
directive not later than 21 November 1996, and that they are           same result can be obtained by less restrictive rules (the
to inform the Commission thereof.                                      proportionality principle).
Although the Grand Duchy of Luxembourg indicated, in its               (1) OJ L 240, 24.08.1992, p. 8.
response to the formal notice and to the reasoned opinion,
that the necessary measures were in the course of preparation,
the Commission has not to date received any information
regarding the adoption of those measures.
(1) OJ L 319 of 12.12.1994, p. 14.
                                                                       Reference for a preliminary ruling from the Hof van
                                                                       Beroep te Gent by judgment of that court of 13 April
                                                                       1999 in the case of NV Algemene Maatschappij van
                                                                       Verzekeringen en Grondkrediet, now known as NV
                                                                       Algemene Maatschappij voor Investering en Dienstverl-
                                                                                  ening (AMID), against the Belgian State
Action brought on 19 April 1999 by the Commission of                                            (Case C-141/99)
         the European Communities against Ireland
                                                                                                (1999/C 188/40)
                        (Case C-139/99)
                                                                       Reference has been made to the Court of Justice of the
                        (1999/C 188/39)                                European Communities by judgment of the Hof van Beroep te
                                                                       Gent (Ghent Court of Appeal) of 13 April 1999, received at
                                                                       the Court Registry on 21 April 1999, for a preliminary ruling
An action against Ireland was brought before the Court of              in the case of NV Algemene Maatschappij van Verzekeringen
Justice of the European Communities on 19 April 1999 by the            en Grondkrediet, now known as NV Algemene Maatschappij
Commission of the European Communities, represented by                 voor Investering en Dienstverlening (AMID), against the
Frank Benyon, Legal Adviser, acting as agent, with an address          Belgian State, on the following question:
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, member of the Legal Service of the Commission, Centre            Does Article 52 of the Treaty of 25 March 1957 establishing
Wagner.                                                                the European Community preclude the application of national
                                                                       legislation of a Member State under which, for the purposes of
The Applicant claims that the Court should:                            assessment to corporation tax, a business loss incurred in that
                                                                       Member State during an earlier taxable period by a company
(1) declare that by providing in Section 65 of the Finance Act         established in that State can be offset against the profits made
    1982 (as amended) that flights from Ireland to other               by that company during a later taxable period only to the
    Member States (with the exception of Northern Ireland)             extent to which that loss cannot be attributed to the profit
    are subject to a higher tax rate than flights within Ireland,      made by a permanent establishment of that company in
    Ireland has failed to comply with Article 3(1) of Council          another Member State during that earlier taxable period, with
    Regulation (EEC) No 2408/92 (1);                                   the result that the loss thus attributed cannot be offset, in
 ---pagebreak--- C 188/18             EN                     Official Journal of the European Communities                                        3.7.1999
either of the Member States concerned, against the taxable             The applicant claims that the Court should:
income of that company for the purposes of assessment to
corporation tax, whereas, if the permanent establishment were
located in the same Member State as the company, the business          (a) Declare that:
losses in question could certainly be set off against the taxable
income of that company?                                                    — by maintaining, in breach of Article 59 of the EC
                                                                                Treaty, a general prohibition whereby lawyers estab-
                                                                                lished in other Member States and practising in Italy in
                                                                                the exercise of the freedom to provide services do not
                                                                                have available to them the infrastructure needed by
                                                                                them to provide their services;
                                                                           — by making enrolment as a lawyer on an Italian register
Reference for a preliminary ruling from the Verfassungs-                        conditional upon the possession of Italian citizenship,
gerichtshof, Austria, by order of that court of 10 March                        the possession of qualifications acquired only in Italy
1999 in the cases of Adria-Wien Pipeline GmbH and                               and maintenance of a residence in an Italian judicial
Wietersdorfer & Peggauer Zementwerke GmbH v Fin-                                district;
               anzlandesdirektion für Kärnten
                                                                           — by applying in a discriminatory manner against lawyers
                       (Case C-143/99)                                          from other Member States the ‘offsetting measures’
                                                                                (aptitude test) provided for in Article 4 of Council
                       (1999/C 188/41)                                          Directive 89/48/EEC of 21 December 1988; (1)
Reference has been made to the Court of Justice of the                     — by incompletely transposing Directive 89/48, notwith-
European Communities by an order of the Verfassungsgericht-                     standing the absence of implementing rules laying
shof (Constitutional Court), Austria, of 10 March 1999, which                   down arrangements for the aptitude test for lawyers
was received at the Court Registry on 21 April 1999, for a                      from other Member States,
preliminary ruling in the cases of Adria-Wien Pipeline GmbH
and Wietersdorfer & Peggauer Zementwerke GmbH v Fin-
anzlandesdirektion für Kärnten on the following questions:             the Italian Republic has failed to fulfil its obligations under
                                                                       Articles 52 and 59 of the EC Treaty and of Direc-
1. Are legislative measures of a Member State which provide            tive 89/48/EEC;
    for partial reimbursement of energy duties on natural gas
    and electrical energy, but grant that reimbursement only           (b) Order the italian Republic to pay the costs.
    to undertakings whose activity is shown to consist primar-
    ily in the production of tangible assets, to be regarded as
    State aid within the meaning of Article 92 of the EC
    Treaty?                                                            Contentions and principal arguments adduced in support
2. If the answer to Question 1 is affirmative: Is such a
    legislative measure to be regarded as State aid under
    Article 92 of the EC Treaty even if it is granted to all           (a) A lawyer established in another Member State who prac-
    undertakings, regardless of whether their activity is shown            tises law in the exercise of his freedom to provide
    to consist primarily in the production of tangible assets?             services must have an opportunity of access in Italy to
                                                                           an infrastructure enabling him to provide the services
                                                                           requested by his clients. The prohibition in Article 2 of
                                                                           Law No 31/1982, by reason of its absolute and general
                                                                           nature, is therefore incompatible with the principle of the
                                                                           freedom to provide services as laid down and defined in
                                                                           Articles 59 and 60 of the Treaty and as interpreted by the
                                                                           Court of Justice, in particular in its judgment in Gebhard (2).
Action brought on 21 April 1999 by the Commission of
 the European Communities against the Italian Republic                 (b) The Commission considers that the continuing existence
                                                                           in the Italian legislation governing the professions of a
                       (Case C-145/99)                                     provision like Article 17.1.7, which imposes as a precon-
                                                                           dition for enrolment on the lawyers’ professional register
                                                                           the requirement of residence within the district of the
                       (1999/C 188/42)                                     Court in the area of the local Bar Association, despite the
                                                                           recommendation from the National Bar Association the
An action against the Italian Republic was brought before the              local Bar Associations in its Opinion of 29 April 1994 that
Court of Justice on 21 April 1999 by the Commission of the                 that provision be disapplied, is precisely the opposite of
European Communities, represented by Enrico Traversa, Legal                the precise, clear and transparent situations which the
Adviser, and Bernard Mongin, of its legal Service, acting as               Court requires the Member States to provide in order to
Agents, with an address for service in Luxembourg at the office            enable lawyers to determine the rights conferred on them
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                     by Article 52 of the Treaty and to make use of them.