CELEX: C2004/021/28
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-473/03: Reference for a preliminary ruling by the Tribunale Ordinario di Milano — Sezione X Penale — by order of that Court of 23 October 2003 in the criminal proceedings against Adelio Aggio, Paolo Berlusconi and Giovanni Butti

24.1.2004               EN                          Official Journal of the European Union                                             C 21/15
—      error of law, in that the Court of First Instance considered         insurance company and the insurance risk is borne by the
       that the Commission was not required to determine the                latter, are the activities undertaken by that taxable person in
       actual effect on competition and intra-Community trade               execution of the agreement ‘related services performed by
       in its examination of the aid at issue in the light of               insurance brokers and insurance agents’ within the meaning of
       Article 87 EC;                                                       Article 13B(a) of the Sixth Directive (1)?
—      distortion of the sense of the claims in the application
       and error in law consisting of breach of the procedural              (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
       rules concerning the right to a fair hearing, in that the                harmonization of the laws of the Member States relating to
       Court of First Instance did not examine the claims relating              turnover taxes - Common system of value added tax: uniform
       to the existence of exceptional circumstances and the                    basis of assessment (OJ L 145 of 13.06.1977, p. 1-40).
       protection of legitimate expectations;
—      distortion of the sense of the claims in the application
       and error in law consisting of infringement of the
       procedural rules concerning the right to a fair hearing, in
       that the Court of First Instance did not examine the
       claims relating to infringement of Article 10 EC and
       breach of the principle of good and proper administration
       by the Commission;
                                                                            Reference for a preliminary ruling by the Tribunale
—      error of law consisting of breach of the procedural rules            Ordinario di Milano — Sezione X Penale — by order of
       concerning the right to a fair hearing, in that the Court of         that Court of 23 October 2003 in the criminal proceedings
       First Instance did not give a decision on the preparatory            against Adelio Aggio, Paolo Berlusconi and Giovanni Butti
       inquiry proposed in the application.
                                                                                                      (Case C-473/03)
                                                                                                       (2004/C 21/28)
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 7 November
2003 in the case of Staatssecretaris van Financiën against
the single taxable entity Arthur Andersen & Co Account-                     Reference has been made to the Court of Justice of the
                               ants c.s.                                    European Communities by order of the Tribunale Ordinario di
                                                                            Milano - Sezione X Penale - (Milan District Court, Tenth
                                                                            Criminal Chamber) of 23 October 2003, received at the Court
                          (Case C-472/03)                                   Registry on 13 November 2003, for a preliminary ruling in
                                                                            the criminal proceedings against Adelio Aggio, Paolo Berlus-
                           (2004/C 21/27)                                   coni and Giovanni Butti on the following question:
                                                                            —     Is Article 6 of Directive 68/151/EEC (1) to be understood
                                                                                  as requiring the Member States to establish appropriate
Reference has been made to the Court of Justice of the                            penalties not only for failing to disclose company balance
European Communities by judgment of the Hoge Raad                                 sheets and profit and loss accounts but also for falsifying
der Nederlanden (Supreme Court of the Netherlands) of                             those documents, or other company documents
7 November 2003, received at the Court Registry on 12 Nov-                        addressed to the members or the public or any infor-
ember 2003, for a preliminary ruling in the case of Staatssecre-                  mation on a company’s assets and liabilities, and econ-
taris van Financiën against the single taxable entity Arthur                      omic and financial situation which the company is
Andersen & Co Accountants c.s. on the following question:                         required to provide in relation to the company or the
                                                                                  group of which it forms a part?
Where a taxable person has concluded an agreement with a
(life) assurance company, such as the agreement at issue                    —     Do the requirements that the penalty be effective, pro-
between ACMC and UL, under which that taxable person                              portionate and dissuasive, with which terms the Court
undertakes, for a certain remuneration and with the aid of                        defined the concept of ‘appropriate penalty’ in its judg-
qualified personnel who are expert in the insurance field, most                   ment of 21 September 1989 in Case 68/88 [Commission
of the actual activities related to insurance — including, as a                   v Hellenic Republic [1989] ECR I-2965], refer to the
rule, the taking of decisions that bind the insurance company                     nature or type of penalty considered in the abstract, or
to enter into insurance contracts and maintaining contact with                    rather also to its application in practice having regard to
the agents and, as the occasion arises, with the insured —                        the structural characteristics of the legal system within
while the insurance contracts are concluded in the name of the                    which it takes effect? and finally
 ---pagebreak--- C 21/16                EN                          Official Journal of the European Union                                         24.1.2004
—     Does Article 2621 of the Codice Civile (as amended by                Action brought on 17 November 2003 by the Com-
      Legislative Decree No 61 of 11 April 2002), which                    mission of the European Communities against the Repub-
      provides for a sentence of imprisonment of up to                                                 lic of Austria
      18 months and consequently a maximum limitation
      period from the time when the offence is committed of                                          (Case C-476/03)
      four and a half years, satisfy those requirements? That
      occurs in a legal system which provides, after the
      investigating judge completes his investigation and the                                         (2004/C 21/30)
      public prosecutor brings criminal proceedings, for review
      by the investigating judge to ascertain that there is
      sufficient evidence to commit the accused for trial and
      for the possibility of three tiers of courts before judgment         An action against the Republic of Austria was brought
      is definitive and thus, in the case of a conviction, the             before the Court of Justice of the European Communities on
      penalty is actually imposed. In addition, account must be            17 November 2003 by the Commission of the European
      taken of the complexity of the findings required under               Communities, represented by Dr Claudia Schmidt and Dr
      Article 2621 of the Codice Civile, given the thresholds              Wouter Wils, with an address for service in Luxembourg.
      of criminal relevance set by Articles 2621, paragraphs 3
      and 4.
                                                                           The applicant claims that the Court should:
(1) OJ L 65 of 14.3.1968, p. 8; English Special Edition: Series-I I        1.    declare that, by failing to adopt the laws, regulations of
    Chapter 1968(I), p. 41.                                                      administrative provisions necessary to transpose Directive
                                                                                 2001/12/EC of the European Parliament and of the
                                                                                 Council of 26 February 2001 amending Council Directive
                                                                                 91/440/EEC on the development of the Community’s
                                                                                 railways (1) or, at any rate, by failing to inform the
                                                                                 Commission thereof, the Republic of Austria has failed to
                                                                                 fulfil its obligations under that directive;
                                                                           2.    declare that, by failing to adopt the laws, regulations of
Reference for a preliminary ruling by the Commissione                            administrative provisions necessary to transpose Directive
Tributaria Provinciale di Cremona, Sezione 02 by order                           2001/13/EC of the European Parliament and of the
of that Court of 9 October 2003 in the case of Banca                             Council of 26 February 2001 amending Council Directive
Popolare di Cremona Soc. Coop.a.r.l. against Agenzia                             95/18/EC on the licensing of railway undertakings (2) or,
                    Entrate Ufficio Cremona                                      at any rate, by failing to inform the Commission thereof,
                                                                                 the Republic of Austria has failed to fulfil its obligations
                                                                                 under that directive;
                         (Case C-475/03)
                                                                           3.    declare that, by failing to adopt the laws, regulations of
                          (2004/C 21/29)                                         administrative provisions necessary to transpose Directive
                                                                                 2001/14/EC of the European Parliament and of the
                                                                                 Council of 26 February 2001 on the allocation of railway
                                                                                 infrastructure capacity and the levying of charges for the
                                                                                 use of railway infrastructure and safety certification (3) or,
Reference has been made to the Court of Justice of the                           at any rate, by failing to inform the Commission thereof,
European Communities by order of the Commissione Tribu-                          the Republic of Austria has failed to fulfil its obligations
taria Provinciale di Cremona, Sezione 02 (Cremona Tax Court,                     under that directive;
Second Chamber) of 9 October 2003, received at the Court
Registry on 17 November 2003, for a preliminary ruling in                  4.    order the Republic of Austria to pay the costs of the
the case of Banca Popolare di Cremona Soc. Coop.a.r.l. against                   proceedings.
Agenzia Entrate Ufficio Cremona on the following question:
Must Article 33 of Directive 77/388/EEC (1) (as amended by                 Pleas in law and main arguments
Directive 91/680/EEC (2)) be interpreted as meaning that it
prohibits a charge to IRAP of the net value of production
deriving from the regular exercise of independent activity to              The period for transposition of those directives expired on
produce or exchange goods or to provide services?                          15 March 2003.
                                                                           (1) OJ No L 75, 15.03.2001, p. 1.
(1) OJ L 145 of 3.6.1977, p. 1.
                                                                           (2) OJ No L 75, 15.03.2001, p. 26.
(2) OJ L 376 of 31.12.1991, p. 1.
                                                                           (3) OJ No L 75, 15.03.2001, p. 29.