CELEX: C2002/131/08
Language: en
Date: 2002-06-01 00:00:00
Title: Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02: Reference for a preliminary ruling by the Il Tribunale Di Brescia, Seconda Sezione Civile by order of that Court of 21 January 2002 in the civil case of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by order of 8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA (C-98/02) against Ministero delle Finanze

C 131/4                EN                   Official Journal of the European Communities                                     1.6.2002
Reference for a preliminary ruling by the Il Tribunale Di              Action brought on 20 March 2002 by the Commission of
Brescia, Seconda Sezione Civile by order of that Court of              the European Communities against the Federal Republic
21 January 2002 in the civil case of Società Dolomite                                              of Germany
Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a.
(C-89/02) against Ministero delle Finanze; by order of                                           (Case C-104/02)
8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/
02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA                                               (2002/C 131/09)
           (C-98/02) against Ministero delle Finanze
                                                                       An action against the Federal Republic of Germany was
  (Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02)
                                                                       brought before the Court of Justice of the European Commu-
                                                                       nities on 20 March 2002 by the Commission of the European
                                                                       Communities, represented by Günter Wilms, of its Legal
                        (2002/C 131/08)                                Service, with an address for service in Luxembourg at the office
                                                                       of Luis Escobar Guerrero, of its Legal Service, Wagner Centre
                                                                       C 254, Kirchberg.
                                                                       The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by orders of the Il Tribunale Di Brescia          (1) declare that the Federal Republic of Germany has
(Brescia Regional Court) Seconda Sezione Civile (Second Civil                infringed its obligations under Article 49 of Commission
Chamber) of 21 January 2002, received at the Court Registry                  Regulation (EEC) No 1214/92 (1) of 21 April 1992 on
on 14 March 2002, for a preliminary ruling in the civil cases                provisions for the implementation of the Community
of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite                transit procedure and for certain simplifications of that
Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by                 procedure and/or Article 379 of Commission Regulation
order of 8 October 2001, received at the Court Registry on                   (EEC) No 2454/93 (2) of 2 July 1993 laying down
18 March 2002, in the cases of Ugine Srl (C-95/02), TOMAR                    provisions for the implementation of Council Regulation
Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA                 (EEC) No 2913/92 (3) establishing the Community Cus-
(C-98/02) against Ministero delle Finanze, on the following                  toms Code in conjunction with Article 2(1) of Council
questions:                                                                   Regulation (EEC, Euratom) No 1552/89 of 29 May
                                                                             1989 (4) implementing Decision 88/376/EEC, Euratom
                                                                             on the system of the Communities’ own resources, by
1.    Is Article 11(1) of Italian Law No 448 of 23 December                  transferring own resources to the Community too late;
      1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
      supplement) compatible with Community law, in particu-           (2) declare that the Federal Republic of Germany is obliged,
      lar with Articles 10 and 12 of Council Directive 69/335/               pursuant to Article 11 of Regulation No 1552/89 for the
      EEC (1) of 17 July 1969 concerning indirect taxes on the               period up to 31 May 2000 and Article 11 of Regulation
      raising of capital, inasmuch as it provides that the                   1150/2000 (5) for the period after 31 May 2000, to pay
      administrative charge is payable at a flat annual rate for             into the Community budget the interest accrued as a
      registration of other company documents for each of the                result of the late transfer;
      years from 1985 to 1992, equal to the sum of the
      sum of ITL 750 000 for public limited companies and              (3) order the Federal Republic of Germany to pay the costs.
      partnerships limited by shares and ITL 400 000 for
      private limited companies and ITL 90 000 for other
      companies?
                                                                       Pleas in law and main arguments
2.    Is Article 11(3) of Law No 448/98 compatible with                Article 49 of Regulation No 1214/92 (on the implementation
      Community law, inasmuch as it provides that interest on          of the Community transit procedure) and Article 379 of
      the sums to be reimbursed in so far as they exceed the           Regulation No 2454/93 (implementing the Customs Code) set
      sum provided for by Article 11(1) should be calculated           a clear and mandatory time-limit by which the customs
      according to the legal rate in force at the date on which        authorities of the Member States must initiate post-clearance
      that Law entered into force (2,5 % per annum) and not            recovery proceedings. This is not purely a procedural time-
      according to the rate provided for by Article 5 with             limit. Had it intended to do so, the legislature would have
      respect to Article 1 of Law No 29 of 26 January 1961, as         identified such a time-limit by using less binding wording. The
      subsequently amended?                                            intention of the legislature and the unambiguous wording of
                                                                       the statute permit solely the conclusion that Article 49 of
                                                                       Regulation No 1214/92 and Article 379(2) of Regulation
                                                                       No 2454/93 do not merely provide for action which the State
(1) OJ L 249 of 3.10.1969, p. 25.                                      ought to take but, rather, prescribe a binding obligation. Post-
                                                                       clearance recovery must be carried out by no later than the
                                                                       expiry of a period of 14 months. Since both the debtor and
                                                                       the amount of the debt to be claimed from him are known to
                                                                       the custom authorities by that stage, the debtor must be