CELEX: C2004/047/22
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-439/03: Reference for a preliminary ruling by the Ufficio del guidice di pace de Bitonto by order of that Court of 6 October 2003 in the case of Antonio Cannito against Fondiaria-Sai Ass.ni.

21.2.2004              EN                        Official Journal of the European Union                                          C 47/13
     (b) does that apply notwithstanding an opinion as                   4.   Does Community law also require the payment of
           mentioned above on the basis that where the                        damages for non-material loss?
           plaintiff proves or even where the plaintiff substan-
           tiates that in the filling of the post the applicant          5.   As a matter of Community law, is the national court
           preferred to the plaintiff was less well-qualified than            required of its own motion to order the payment of
           the plaintiff the rule of evidence under this directive            punitive damages or damages for non-material loss?
           comes into effect
     (c)   and on the basis that proof to the contrary may only          6.   Is the limitation period of one year for bringing an action
           be regarded as conclusive if it leads to the factual               for damages for breach of Articles 81 and 82 EC under
           finding that the candidate appointed was better                    Italian law too short and therefore in conflict with
           suited or that in actual fact a non-gender-related                 Community law?
           reason was the decisive factor in the appointment of
           a less well-suited candidate?                                 7.   As a matter of Community law, for the purposes of the
                                                                              limitation period for bringing an action for damages,
                                                                              does time begin to run from the day on which the
(1) OJ 1976 L 39, p. 40.                                                      infringement of Articles 81 and 82 EC was committed or
(2) OJ 1997 L 14, p. 6.                                                       the day on which that infringement came to an end?
                                                                         8.   Does Community law require national courts to disapply
                                                                              national rules in conflict with Community law or rather
                                                                              to interpret them so as to comply with Community law?
Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
                      Fondiaria-Sai Ass.ni.
                         (Case C-438/03)
                                                                         Reference for a preliminary ruling by the Ufficio del
                                                                         guidice di pace de Bitonto by order of that Court of
                          (2004/C 47/21)                                 6 October 2003 in the case of Antonio Cannito against
                                                                                              Fondiaria-Sai Ass.ni.
Reference has been made to the Court of Justice of the                                           (Case C-439/03)
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the                                      (2004/C 47/22)
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:
1.   Do the facts as found in Judgment No 2199 of the
                                                                         Reference has been made to the Court of Justice of the
     Consiglio di Stato (Council of State) of 23 April 2002 and
                                                                         European Communities by order of the Ufficio del guidice di
     in Judgment No 6139 of the Tribunale Amministrativo
                                                                         pace de Bitonto of 6 October 2003, received at the Court
     Regionale (Regional Administrative Court) Lazio (Rome)
                                                                         Registry on 16 October 2003, for a preliminary ruling in the
     of 5 July 2001, which are deemed to be set out here in
                                                                         case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
     full, constitute infringements of Community law, in
                                                                         following questions:
     particular of Articles 81 and 82 EC?
2.   Does an infringement of Articles 81 and 82 EC imply an              1.   Do the facts as found in Judgment No 2199 of the
     obligation on the part of the person committing it to                    Consiglio di Stato (Council of State) of 23 April 2002 and
     compensate end users, and all those who demonstrate                      in Judgment No 6139 of the Tribunale Amministrativo
     that they have suffered any injury, for damage suffered?                 Regionale (Regional Administrative Court) Lazio (Rome)
                                                                              of 5 July 2001, which are deemed to be set out here in
3.   In assessing the amount of damages, in addition to the                   full, constitute infringements of Community law, in
     restitution of sums charged in breach of Community                       particular of Articles 81 and 82 EC?
     rules, is the national court required (again as a matter of
     Community law) to award the injured party a sum by way              2.   Does an infringement of Articles 81 and 82 EC imply an
     of punitive damages against those persons responsible                    obligation on the part of the person committing it to
     for the prohibited agreement or abuse of a dominant                      compensate end users, and all those who demonstrate
     position?                                                                that they have suffered any injury, for damage suffered?
 ---pagebreak--- C 47/14               EN                        Official Journal of the European Union                                          21.2.2004
3.   In assessing the amount of damages, in addition to the             2.   If the first question is answered in the affirmative: are
     restitution of sums charged in breach of Community                      Article 2(1) and Article 17 of the Sixth Directive to be
     rules, is the national court required (again as a matter of             interpreted as meaning that all services obtained in
     Community law) to award the injured party a sum by way                  connection with a listing on the stock market are to be
     of punitive damages against those persons responsible                   attributed to an exempt supply and that for that reason
     for the prohibited agreement or abuse of a dominant                     there is no right to a deduction of input tax?
     position?
4.   Does Community law also require the payment of                     3.   If the first question is answered in the negative: is there a
     damages for non-material loss?                                          right under Article 17(1) and (2) of the Sixth Directive to
                                                                             deduct input tax on the ground that the services in respect
                                                                             of which a deduction of input tax is claimed (advertising,
5.   As a matter of Community law, is the national court
                                                                             agent’s fees, and legal and technical advice) are used for
     required of its own motion to order the payment of
                                                                             the purposes of the undertaking’s taxable transactions?
     punitive damages or damages for non-material loss?
6.   Is the limitation period of one year for bringing an action
     for damages for breach of Articles 81 and 82 EC under              (1) OJ L 145, p. 1.
     Italian law too short and therefore in conflict with
     Community law?
7.   As a matter of Community law, for the purposes of the
     limitation period for bringing an action for damages,
     does time begin to run from the day on which the
     infringement of Articles 81 and 82 EC was committed or
     the day on which that infringement came to an end?
8.   Does Community law require national courts to disapply
     national rules in conflict with Community law or rather
     to interpret them so as to comply with Community law?              Reference for a preliminary ruling by the Hessischen
                                                                        Verwaltungsgerichtshofes by order of that Court of
                                                                        1 October 2003 in the case of Volkswirt Weinschänken
                                                                                   GmbH against Stadt Frankfurt am Main
                                                                                                 (Case C-491/03)
Reference for a preliminary ruling by the Unabhängigen
Finanzsenats der Außenstelle Linz by order of that Court
of 20 October 2003 in the case of Kretztechnik AG                                                 (2004/C 47/24)
                    against Finanzamt Linz
                        (Case C-465/03)
                                                                        Reference has been made to the Court of Justice of the
                         (2004/C 47/23)
                                                                        European Communities by order of the Hessischen Verwal-
                                                                        tungsgerichtshofes of 1 October 2003, received at the Court
                                                                        Registry on 20 November 2003, for a preliminary ruling in
                                                                        the case of Volkswirt Weinschänken GmbH against Stadt
Reference has been made to the Court of Justice of the                  Frankfurt am Main on the following questions:
European Communities by order of the Unabhängigen Fi-
nanzsenats der Außenstelle Linz of 20 October 2003, received
at the Court Registry on 5 November 2003, for a preliminary             1.   A local beverage duty bye-law defines as the subject-
ruling in the case of Kretztechnik AG against Finanzamt Linz                 matter of that duty ‘the sale of alcoholic beverages for
on the following questions:                                                  immediate consumption’, and as such a sale ‘any sale for
                                                                             consumption on the premises’. Is this duty another
1.   In becoming listed on a stock market and in issuing                     indirect tax on products subject to excise duty for the
     shares in that connection to new shareholders in return                 purposes of Article 3(1) and (2) of Council Directive
     for the issue price, does a public limited company                      92/12/EEC (1) of 25 February 1992 on the general
     make a supply for consideration within the meaning of                   arrangements for products subject to excise duty and on
     Article 2(1) of Sixth Council Directive 77/388/EEC of                   the holding, movement and monitoring of such products,
     17 May 1977 on the harmonisation of the laws of the                     or is it a tax on the supply of services relating to products
     Member States relating to turnover taxes — Common                       subject to excise duty, within the meaning of the second
     system of value added tax: uniform basis of assessment? (1)             subparagraph of Article 3(3) of Directive 92/12/EEC?