CELEX: C2003/171/17
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-197/03: Action brought on 12 May 2003 by the Commission of the European Communities against the Italian Republic

C 171/12               EN                       Official Journal of the European Union                                         19.7.2003
to asbestos has resulted in psychological and physical stress;          a renumerative nature, inasmuch as the Italian tax authorities
that damage may be assumed to exist on the basis of                     already levied on registration of such company documents in
information concerning environmental pollution and may                  the years 1985 to 1992 ‘analogous charges which may be
certainly be described as biological and life-threatening dam-          regarded as constituting renumeration for the service provided’.
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who             The Italian authorities, contrary to the provisions of
fearfully expected to suffer from cancer, that is to say, to die.       Article 11(2) of Law No 448/98, are obliged to reimburse in
                                                                        full to the capital companies who have sought recovery within
                                                                        the periods laid down, the amount of the administrative charge
                                                                        on registration of the instrument of incorporation declared
                                                                        invalid by the Court in Joined Cases C-71/91 and C-178/91
                                                                        Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
                                                                        and are not at liberty to reduce that amount by a sum equal to
                                                                        eight times the retroactive annual flat-rate charge provided for
Action brought on 12 May 2003 by the Commission of                      in Article 11(1) of Law No 448/98. The introduction of that
  the European Communities against the Italian Republic                 retroactive annual flat-rate charge constitutes a flagrant breach
                                                                        of the prohibition in Article 10 of Directive 69/335.
                         (Case C-197/03)
                                                                        (b)   The detailed rules for calculating interest on the
                         (2003/C 171/17)                                      amounts to be repaid to the companies
                                                                        The Commission points out that the detailed rules for calculat-
                                                                        ing interest on refunds of the administrative charge on
An action against the Italian Republic was brought before the           registration of a company’s instrument of incorporation
Court of Justice of the European Communities on 12 May                  provided for in Article 11(3) of Law No 448/98 concern only
2003 by the Commission of the European Communities,                     a specific category of actions for restitution, namely those
represented by Enrico Traversa, acting as Agent.                        based on an infringement of Article 10 of Directive 69/335,
                                                                        that is to say a breach of a provision of Community law. Since
                                                                        those detailed rules for calculating interest are manifestly less
The applicant claims that the Court should:                             favourable in contrast to those applicable in the case of
                                                                        analogous actions based on national law, the Commission
—     declare that, by introducing with retroactive effect under        concludes that Article 11(3) of Law No 448/98 constitutes an
      Article 11 of Law No 448/98, an annual flat-rate charge           infringement of the principle of equivalence upheld by the
      on the registration of company documents other than the           Court.
      instrument of incorporation and by providing for rules
      relating to reimbursement of the repealed administrative
      charge on registration of the instrument of incorporation         (c)   Detailed rules for reimbursement of the repealed admin-
      which are discriminatory and restrictive as against com-                istrative charge on registration of the instrument of
      panies entitled to that reimbursement, the Italian Republic             incorporation
      has infringed the obligations imposed on it by
      Article 10(c) of Council Directive 69/335/EEC ( 1) con-
      cerning indirect taxes on the raising of capital and the          In the Commission’s view, the requirements contained in
      principles laid down by the Court of Justice concerning           Article 11(4) and (5) of Law No 448/98 and in implementing
      recovery of charges levied by the Member States in breach         circular No 32/E providing for a commencement date for
      of Community law;                                                 reimbursement procedures, introducing an annual ceiling of
                                                                        amounts earmarked for reimbursement and suspending the
                                                                        reimbursements themselves in cases where proceedings at first
—     order the Italian Republic to pay the costs.
                                                                        instance are still pending, occasion, or are likely to occasion,
                                                                        delays in repayment of the repealed charge on registration of
                                                                        a company’s instrument of incorporation. This deferral of
                                                                        reimbursements and the consequent extension of the duration
Pleas in law and main arguments                                         of judicial proceedings for recovery of the registration charge
                                                                        quite plainly renders excessively difficult the exercise of a right
                                                                        conferred by the Community legal order and, more specifically,
                                                                        the right of capital companies to be subject, on incorporation,
(a)   The annual retroactive flat-rate charge on registration           only to the harmonised tax on contributions and to seek
      of company documents other than the instrument of                 recovery of other non-harmonised indirect taxes prohibited
      incorporation                                                     under Article 10 of Directive 69/335.
The Commission maintains that the retroactive flat-rate charge          The Commission concludes that the Italian legislature, by
on registration of company documents other than the instru-             introducing restrictive rules on reimbursement provided for in
ment of incorporation cannot in any way be deemed to be of              Article 11(4) and (5) of Law No 448/98, has at one and the
 ---pagebreak--- 19.7.2003                EN                      Official Journal of the European Union                                           C 171/13
same time infringed all three principles upheld by the Court in          which requires all the Member States to introduce into their
regard to the recovery of charges levied by the Member States            respective national systems review procedures full available to
in breach of Community law, that is to say not only the                  those who intend to seek reparation of damage suffered or
principle of equivalence and the maintenance of the effects of           who in any event fear that they may suffer harm as a result of
judgments of the Court declaring a charge incompatible with              a decision taken by the tenders committee for the award of a
Community law but also the principle of effectiveness.                   public procurement contract?
( 1) OJ English Special Edition 1969 II, p. 412.
                                                                         Does that interim relief which may be granted by the national
                                                                         administrative courts constitute infringement of Article 2(1)(a)
                                                                         of the Directive, which requires the Member States to take at
                                                                         the earliest opportunity and by way of interlocutory pro-
                                                                         cedures, interim measures with the aim of correcting the
                                                                         alleged infringement or preventing further damage to the
Reference for a preliminary ruling by the Tribunale                      interests concerned, including measures to suspend or to
Amministrativo Regionale per la Lombardia — Sezione                      ensure the suspension of the procedure for the award of a
Staccata di Brescia by order of that Court of 24 April                   public contract or the implementation of any decision taken
2003 in the case of Società DAC S.p.A. against Azienda                   by the contracting authority?
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
                          Pellegrini S.p.A
                                                                         Finally, does that form of interim relief also constitute breach
                          (Case C-202/03)                                of Article 6(2) TEU which, in providing that the Union must
                                                                         respect fundamental rights, as guaranteed by the European
                          (2003/C 171/18)                                Convention for the Protection of Human Rights and Funda-
                                                                         mental Freedoms, has adopted the principle laid down in
                                                                         Articles 6 and 13 of that Convention that judicial protection
                                                                         must be effective, requiring the Member States to guarantee
Reference has been made to the Court of Justice of the                   that full effectiveness in their respective national legal systems?
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on               (1 ) OJ L 395, 30.12.1989, p. 33.
13 May 2003, for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:
Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal               Reference for a preliminary ruling by the High Court of
order in respect of rights recognised in disputes between                Justice (England and Wales), Queen’s Bench Division
private persons or in disputes between the latter and the public         (Administrative Court) by order of that court dated
authorities over which the ordinary courts have jurisdiction,            12 February 2003, in the case of The Queen on the
contrary to the principle of cooperation enshrined in                    application of Dany Bidar against 1) London Borough of
Article 10 EC, which, in the absence of any harmonised                              Ealing 2) Secretary of State for Education
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national law, rather than relief which is purely                                         (Case C-209/03)
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?                                                                                              (2003/C 171/19)
Furthermore, in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order          Reference has been made to the Court of Justice of the
restraining the authorities forthwith from concluding the                European Communities by an order of the High Court
contract at the end of a. tendering procedure, quite irrespective        of Justice (England and Wales), Queen’s Bench Division
of whether or not an action challenging an act in that                   (Administrative Court), dated 12 February 2003, which was
procedure has already been brought, does Article 21 of Law               received at the Court Registry on 15 May 2003, for a
No 1034 of 6 December 1971, as amended by Law No 205                     preliminary ruling in the case of The Queen on the application
of 21 July 2000, constitute sufficient implementation of                 of Dany Bidar against 1) London Borough of Ealing 2) Secretary
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,            of State for Education on the following questions: