CELEX: C1997/009/21
Language: en
Date: 1997-01-11 00:00:00
Title: Reference for a preliminary ruling by the Tribunale di Catania, First Civil Chamber, by order of that court of 14 October 1996 in the case of ISFA SpA v. Ministero delle Finanze (Case C-363/96)

11 . 1 . 97           1 EN                   Official Journal of the European Communities                                   No C 9/ 11
  Reference for a preliminary ruling by the Finanzgericht                  The Commission of the European Communities claims
  Kôln by order of that court of 29 August 1996 in the case                that the Court should :
  of Société générale des grandes sources d'eaux minérales
             françaises against Bundesamt fiir Finanzen                    — declare that, by failing to bring into force within the
                                                                                 prescribed time limits the laws, regulations and
                            ( Case C-361 /96 )
                                                                                 administrative measures necessary in order to comply
                                 ( 97/C 9/19 )                                   with Commission Directive 93/106/EC (') amending
                                                                                 Directive 92/76/EEC (2 ) recognizing protected zones
                                                                                 exposed to particular plant health risks in the
                                                                                 Community, and Commission Directive 94/3/EC ( 3 ) of
 Reference has been made to the Court of Justice of the                          21 January 1994 establishing a procedure for the
 European Communities by order of the Second Senate of                           notification of interception of a consignment or a
 the Finanzgericht Koln ( Finance Court, Cologne ) of                            harmful organism from third countries and presenting
 29 August 1996, received at the Court Registry on                               an imminent phytosanitary danger, and by failing to
  12 November 1996, for a preliminary ruling in the case of                      communicate those measures to the Commission, the
 Societe generate des grandes sources d'eaux minerales                           Grand Duchy of Luxembourg has failed to fulfil its
 frangaises against Bundesamt fur Finanzen ( Federal                             obligations pursuant to Article 2 of Directive 93/106/
 Finance Office ) on the following questions :                                   EC and Article 7 of Directive 94/3/EC respectively,
                                                                          — order the Grand Duchy of Luxembourg to pay the
 ( a ) Does Article 3 ( a ) of the eighth Council Directive 79/                 costs .
        1072/EEC of 6 December 1979 on the harmonization
       of the laws of the Member States relating to turnover              Pleas in law and main arguments adduced in support:
       taxes ( J ) preclude the Member States from providing
       in their national law that where an invoice or import              The pleas in law and main arguments are the same as in
       document is lost for reasons beyond the control of a               Case C-356/96 (4 ); the time limit for transposition expired
       taxable person referred to in Article 2 of the Directive,          on 15 December 1993 in the case of Directive 93/ 106/EC
       that person may prove his entitlement to a refund by               and on 5 May 1994 in the case of Directive 94/3/EC.
       submitting a duplicate of tfie invoice or import
       document ?                                                         (') OJ No L 298 , 3 . 12 . 1993 , p. 34 .
                                                                          ( 2 ) OJ No L 305 , 21 . 10 . 1992 , p. 12 .
                                                                          ( 3 ) OJ No L 32, 5 . 2. 1994, p. 37.
 ( b ) Should the first question be answered in the negative,             (4) OJ No C 370, 7. 12 . 1996, p. 10.
       does it follow from the prohibition on discrimination
       under Community law and from the principle of
       neutrality of turnover taxes that a taxable person
       referred to in Article 2 of the Directive, who loses an
       invoice or import document referred to in Article 3 ( a )
                                                                         Reference for a preliminary ruling by the Tribunale di
       for reasons beyond his control, has the right to prove
                                                                         Catania, First Civil Chamber, by order of that court of
       his entitlement to a refund by submitting a duplicate
                                                                          14 October 1996 in the case of ISFA SpA v. Ministero
       of the invoice or import document ?                                                              delle Finanze
                                                                                                    ( Case C-363/96 )
( J ) OJ No L 331 , 27. 12 . 1979, p . 11 .
                                                                                                         ( 97/C 9/21 )
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of Tribunale di Catania
                                                                         ( District Court, Catania ), First Civil Chamber, of
                                                                          14 October 1996, which was received at the Court
                                                                         Registry on 13 November 1996 , for a preliminary ruling
Action brought on 13 November 1996 by the Commission                     in the case of ISFA SpA v. Ministero delle Finanze on the
of the European Communities against the Grand Duchy of                   following question :
                              Luxembourg
                                                                         Is it permissible under Community law for the competent
                          ( Case C-362/96 )                              authorities of the Italian State reasonably to rely on
                                                                         national procedural rules concerning the periods within
                               ( 97/C 9/20 )                             which proceedings must be brought ( in particular, the
                                                                         second paragraph of Article 13 of Presidential Decree
                                                                         No 641 of 26 October 1972 concerning a three-year
An action against the Grand Duchy of Luxembourg was                      period for bringing actions ) in proceedings brought against
brought before the Court of Justice of the European                      those authorities by an individual before a national court
Communities on 13 November 1996 by the Commission                        for the purpose of safeguarding the right to reimbursement
of the European Communities, represented by Gerard                       of amounts unduly paid ( in respect of administrative
Berscheid, of its Legal Service, acting as Agent, with an                charges under Decree Law No 853/84, converted into Law
address for service in Luxemburg at the office of Carlos                 No 17/85 , as subsequently amended ) in contravention of
Gomez de la Cruz, Wagner Centre, Kirchberg.                              the rules laid down in Council Directive 69/335/EEC of
 ---pagebreak--- No C 9/ 12            1 EN |                    Official Journal of the European Communities                                   11 . 1 . 97
17 July 1969 concerning indirect taxes on the raising of                        gas sector by legislation and has to that end
capital (*), with reference to the period during which the                      submitted, pursuant to Article 189b (2 ) of the EC
Italian State had not correctly transposed the provisions of                    Treaty, a proposal to the Council of the European
the Directive into its domestic legal system (a period                          Union, which is working on the adoption of a
which did not end until the entry into force of Decree Law                      common position, for a European Council and
No 331 of 30 August 1993 , converted into Law No 427                            Parliament Directive concerning common rules for
of 29 October 1993 )?                                                           the internal market in natural gas ( ! ) mean that the
                                                                                competent authorities of a Member State pursuant to
H OJ No L 249 , 3 . 10 . 1969 , p . 25 .                                        Article 9 ( 3 ) of Council Regulation No 17 of
                                                                                6 February 1962 (2 ) are precluded on the basis of the
                                                                                second paragraph of Article 5 of the Treaty, under
                                                                                which the Member States are to abstain from any
                                                                                measure which could prejudice the attainment of the
                                                                                objectives of the Treaty, from applying Article 85 ( 1 )
Reference for a preliminary ruling from the Bezirksgericht                      of the Treaty by administrative order to an agreement
fur Handelssachen Wien, by judgment of that court                               under which two domestic long-distance gas
of      21   October         1996,     in   the  case     of    Verein          undertakings mutually undertake to refrain from
fur      Konsumenteninformation against              Osterreichische            publicly supplying mains gas, whether directly or
                      Kreditversicherung AG                                     indirectly, in the supply area of the other contracting
                            ( Case C-364/96 )                                   party (a market-sharing agreement)?
                               ( 97/C 9/22
                                                                            2 . If Question 1 is answered in the negative :
Reference has been made to the Court of Justice of the                          do the competent authorities of a Member State
European Communities by order of the Bezirksgericht fur                         within the meaning of Article 9 ( 3 ) of Regulation
Handelssachen Wien ( District Commercial Court, Vienna )                        No 17, by applying Article 85 ( 1 ) of the EC Treaty to
of 21 October 1996 , received at the Court Registry on                          a market-sharing agreement between two domestic
14 November 1996, for a preliminary ruling in the                               long-distance gas undertakings, when, in other
case of Verein fur Konsumenteninformation v. Oster­                             Member States, such undertakings have sales areas
reichische Kreditversicherung AG on the                     following           protected by contract or de facto from competition or
question:                                                                       there are statutory monopolies over long-distance gas
                                                                                supply, infringe the obligation on the Member States
Is Article 7 of Council Directive 90/314/EEC of 13 June                         which follows from the second paragraph of Article 5
1990 on package travel, package holidays and package                            in conjunction with Article 3 (g) of the EC Treaty to
tours 0 ) to be interpreted as meaning that the payment of                      abstain from any measure which may jeopardize the
sums by a consumer to the provider of services ( e.g. a                         Community objective of establishing a system
hotel-keeper ) at the resort because the latter person                          ensuring that competition in the internal market is
prevented him from returning home unless payment was                            not distorted ?
made is included within the protective scope of that
provision as ' security for the repatriation of the                         3 . If Question 2 is answered in the negative :
consumer '?
                                                                                is there a measure (a selling arrangement) compatible
f 1 ) OJ No L 158 , 23 . 6 . 1990, p . 59 .                                     with the free movement of goods between Member
                                                                                States for the purposes of Article 30 of the EC Treaty,
                                                                                as interpreted by the Court of Justice in Joined Cases
                                                                                C-267/91 and 268/91 Keck and Mithouard [ 1993]
                                                                                ECR 1-6097, where the national legal order ( in
                                                                                Germany paragraph 103 of the Gesetz gegen Wettbe­
Reference for a preliminary ruling by the Kammergericht,
                                                                                werbsbeschrankungen ( Law Against Restrictions on
Berlin, by order of that court of 30 October 1996 in the
                                                                                Competition )) exempts, on notification, market­
case of Ruhrgas AG and Thyssengas GmbH against the
                          Bundeskartellamt                                      sharing agreements between long-distance gas
                                                                                undertakings — which avail themselves of this
                            ( Case C-365/96 )                                   possibility — from the prohibition on restrictive
                                ( 97/C 9/23 )                                   practices under national law and, if so, does it follow
                                                                                therefrom that the competent authorities of a
Reference has been made to the Court of Justice of the                          Member State pursuant to Article 9 ( 3 ) of Regulation
European Communities by order of the Kammergericht,                             No 17 may not apply the prohibition within the
 Berlin — Kartellsenat ( Cartel Chamber of the Berlin Court                     meaning of Article 85 ( 1 ) of the EC Treaty to such
 of Appeal ) of 30 October 1996, received at the Court                          exempted market-sharing agreements ?
 Registry on 19 November 1996, for a preliminary ruling
in the case of 1 . Ruhrgas AG and 2 . Thyssengas GmbH                       4 . If Question 3 is answered in the negative:
 against the Bundeskartellamt ( Federal Cartel Office ) on
                                                                                is Article 9 ( 3 ) of Regulation No 17, under which the
the following questions :
                                                                                authorities of the Member States remain competent
    1 . Does the fact that the European Commission is                           to apply Article 85 ( 1 ) of the EC Treaty as long as
        seeking to complete the internal market in the natural                  the Commission has not initiated any procedure,