CELEX: C1999/204/48
Language: en
Date: 1999-07-17 00:00:00
Title: Case C-155/99: Reference for a preliminary ruling from the Pretura di Treviso, Oderzo Division, by order of that court of 7 April 1999, in the case of Giuseppe Busolin and Others against Ispettorato Centrale Repressione Frodi - Ufficio di Conegliano - Ministero delle Risorse Agricole, Alimentari e Forestali

C 204/26                EN                         Official Journal of the European Communities                                     17.7.1999
— The Portuguese legislation does not impose the obligation                   Reference for a preliminary ruling from the Pretura di
     to seek prior authorisation from the competent authorities               Treviso, Oderzo Division, by order of that court of 7
     for the operation of coal gasification and liquefaction                  April 1999, in the case of Giuseppe Busolin and Others
     plants, as provided for in Article 3(1) and point 1.3 of                 against Ispettorato Centrale Repressione Frodi — Ufficio
     Annex I to the directive. The fact that, possibly, there are             di Conegliano — Ministero delle Risorse Agricole, Ali-
     no coal gasification and liquefaction plants in Portugal at                                    mentari e Forestali
     the present time is irrelevant.
— The Portuguese legislation does not impose the obligation                                           (Case C-155/99)
     to seek prior authorisation from the competent authorities
     for the operation of plants for the manufacture of asbestos,
     as provided for in Article 3(1) and point 3.3 of Annex I to
     the directive.                                                                                   (1999/C 204/48)
(1) OJ L 188 of 16 July 1984, p. 20.                                          Reference has been made to the Court of Justice of the
                                                                              European Communities, by order of the Pretura di Treviso,
                                                                              Oderzo Division, of 27 April 1999, for a preliminary ruling in
                                                                              the case of Giuseppe Busolin and Others against Ispettorato
                                                                              Centrale Repressione Frodi — Ufficio di Conegliano —
                                                                              Ministero delle Risorse Agricole, Alimentari e Forestali on the
                                                                              following questions:
                                                                              — whether the Commission’s decision to allocate the quantity
                                                                                  for compulsory distillation between the various production
                                                                                  regions for the wine year 1993/94 (as referred to in
Reference for a preliminary ruling by the Tribunal de                             Regulation (EC) No 343/94) (1) was invalid for infringe-
Première Instance de Tournai by judgment of that court                            ment of Article 39(11)(b) of Regulation (EEC)
of 31 March 1999 in the case of Floridienne S.A. and                              No 822/87(2) (as amended by Regulation (EEC)
           Berginvest S.A. against the Belgian State                              1972/87) (3) through failure to ascertain the existence of
                                                                                  the statutory prerequisite under that same legislation,
                                                                                  namely a significant difference between the quantities
                           (Case C-142/99)                                        available/normal consumption ratio for 1993/94 and the
                                                                                  same ratio for the reference years 1981/82, 1982/83 and
                                                                                  1983/84;
                           (1999/C 204/47)
Reference has been made to the Court of Justice of the                        — whether the Commission’s decision to allocate the quantity
European Communities by judgment of the Tribunal de                               for compulsory distillation between the various production
Première Instance, Tournai (Court of First Instance, Tournai)                     regions for the year 1993/94 (pursuant to Regulation (EC)
of 31 March 1999, received at the Court Registry on 21 April                      No 343/94) was valid, given that it appears to be defective
1999, for a preliminary ruling in the case of Floridienne S.A.                    for infringement of Article 190 (or for an ‘inadequate
and Berginvest S.A. v Belgian State on the following question:                    statement of reasons’) of the EC Treaty in that neither
                                                                                  Regulation No 343/94 nor the measures and documents
                                                                                  underlying refer to any assessment as to the existence of
                                                                                  the statutory precondition that the ratio between quantities
‘Must share dividends and interest on loans always be excluded                    available and normal consumption for the year 1993/94
from the denominator of the fraction (1) used to calculate the                    should differ significantly from that for the reference years
deductible proportion, even where the company receiving such                      1981/82, 1982/83 and 1983/84;
dividends and interest has involved itself in the management of
the undertakings paying or allocating them, save in the exercise
of its rights as shareholder?’
                                                                              — whether Regulation (EC) No 343/94, requiring Italy to
                                                                                  distil 12 150 000 hl, is invalid for infringement of the
                                                                                  principle of reasonableness, manifest error and inconsist-
                                                                                  ency in relation to the object pursued, in the light of the
(1) The fraction referred to in Article 19 of the Sixth Council Directive         system of calculation used by the Commission ... on
    77/388/EEC of 17 May 1977 on the harmonisation of the laws                    account of the unreasonableness and illogicality of the
    of the Member States relating to turnover taxes — Common
    system of value tax : uniform basis of assessment (OJ 1977 L 145,             updating of the percentage of 85 (4), comparing parameters
    p. 1).                                                                        that were entirely divorced from the reality of the wine
                                                                                  market in 1993/94. Moreover, for the reasons and in the
                                                                                  light of the calculations given above, the same rules also
                                                                                  appear to be invalid as being discriminatory against Italy
                                                                                  and thus in breach of the prohibition on discrimination in
                                                                                  Article 40 of the EC Treaty;
 ---pagebreak--- 17.7.1999              EN                     Official Journal of the European Communities                                       C 204/27
— whether Regulation (EC) No 343/94, requiring Italy to                       — maintaining in force Article 15, Title IV of Law No 409
     distil 12 150 000 hl, is unlawful for infringement of                         of 24 July 1985, which refers to Article 1 of Law
     Article 39(11) (b) of Regulation (EEC) No 822/87 (as                          No 1398 of 14 December 1964, having the effect that
     amended by Regulation (EEC) No 1972/87) for the reasons                       only Italian citizens may remain registered in case of
     set out above;                                                                transfer of residence to another Member State.
— in the ... event that Article 39(11)(b) of Regulation (EEC)            2. Order the Italian Republic to pay the costs.
     No 822/87 (as amended by Regulation (EEC) No 1972/87)
     is to be interpreted as authorising such a system of
     calculation [used in Regulation (EEC) No 343/94] whether            Pleas in law and main arguments
     Article 39(11)(b) is unlawful for infringement of the prin-
     ciple of reasonableness, manifest error and inconsistency           The residence obligation may give rise to discrimination in
     in relation to the object pursued, and for infringement of          relation to medical practitioners established in other Member
     the prohibition on discrimination under Article 40 of the           States, since it can be fulfilled more easily by Italian citizens.
     Treaty;                                                             That obligation makes exercise of the profession of dentist in
                                                                         Italy impossible for a practitioner established in another
— whether Article 39(3) (4) and (11) of Regulation (EEC)                 Member State, even close to the border. By contrast, a dentist
     No 822/87, as amended by Regulation (EC) 1566/93, and               established in Italy — especially in the border area — may
     Regulation (EEC) No 343/94 which implements the former              open a branch surgery in another Member State without being
     measures, are unlawful for infringement of the principle of         subject to any condition of residence in that State. As a
     reasonableness, manifest error, misuse of powers and                consequence, the Italian rules apply more strictly to dentists of
     infringement of the principle of proportionality.                   other Member States than to those established in Italian
                                                                         territory.
(1) Commission Regulation of 15 February 1994 (OJ L 44 of
    17.2.1994, p. 9).                                                    Obligatory cancellation from the register in the event of
(2) Council Regulation of 16 March 1987 (OJ L 84 of 27.3.1987,           residence being transferred abroad has the effect of making it
    p. 26).                                                              impossible for non-residents to open a dental surgery in Italian
(3) OJ L 184 of 3.7.1987, p. 26.                                         territory. Such a measure is discriminatory in that it does not
(4) Referred to in the third indent of Article 39(3) of Regulation       prohibit dentists established and resident in Italy from opening
    No 822/87.                                                           a branch surgery in another Member State on condition that
                                                                         they remain resident in the practising district to which they
                                                                         belong in Italy.
Action brought on 30 April 1999 by the Commission of
  the European Communities against the Italian Republic                  Reference for a preliminary ruling by the Amtsgericht
                                                                         Tauberbischofsheim by order of 13 April 1999 in the
                         (Case C-162/99)                                 proceedings concerning the imposition of a fine on
                                                                                             Portugaia Construcoes Lda
                         (1999/C 204/49)
                                                                                                   (Case C-164/99)
An action against the Italian Republic was brought before the                                      (1999/C 204/50)
Court of Justice of the European Communities on 30 April
1999 by the Commission of the European Communities,
represented by Francesco Ruggeri Laderchi and Bernard Mon-               Reference has been made to the Court of Justice of the
gin, of its Legal Service, acting as Agents, with an address for         European Communities by order of 13 April 1999 from the
service in Luxembourg at the offices of Carlos Gómez de la              Amtsgericht Tauberbischofsheim (Local Court, Tauber-
Cruz, Wagner Centre, Kirchberg.                                          bischofsheim), which was received at the Court Registry on
                                                                         4 May 1999, for a preliminary ruling in the proceedings
                                                                         concerning the imposition of a fine on Portugaia Construcoes
The applicant claims that the Court should:                              Lda on the following questions:
1. Declare that the Italian Republic has failed to fulfil its            1. Is an interpretation of Directive 96/71/EC of the European
     obligations under Articles 39 and 43 (formerly Articles 48               Parliament and of the Council of 16 December 1996
     and 52) of the EC Treaty by:                                             concerning the posting of workers in the framework of the
                                                                              provision of services (OJ 1997 L 18, p. 1) or, if that
     — allowing the Legislative Decree of the Provisional                     directive is not applicable, an interpretation of Article 59
         Head of State No 233 of 13 September 1946, despite                   et seq. of the EC Treaty, under which overriding require-
         amendment by Article 9 of Law No 362 of 8 Novem-                     ments of public interest capable of justifying a restriction
         ber 1991, to remain in force in such a way as leave                  on the freedom to provide services in cases involving the
         dentists practising in Italy still subject to a de facto             posting of employees can lie not only in the social
         residence obligation, and                                            protection of the employees posted but also in the