CELEX: C1997/142/18
Language: en
Date: 1997-05-10 00:00:00
Title: Action brought on 11 February 1997 by the Italian Republic against the Commission of the European Communities (Case C-59/97)

No C 142/8            EN                   Official Journal of the European Communities                                    10 . 5 . 97
                  ORDER OF THE COURT                                       the clearance of the accounts presented by the
                        ( First Chamber)                                   Member States in respect of the expenditure for 1992
                                                                           of the Guarantee Section of the European Agricultural
                       of 6 March 1997                                     Guidance and Guarantee Fund ( EAGGF ) and in
in Case C-303/96 P: Giorgio Bernardi v. European                           respect of certain expenditure for 1993 ('), so far as
                          Parliament (M                                    concerns the chapters which relate to financial
                                                                           corrections chargeable to the Hellenic Republic for
(Appeal — European Ombudsman — Nominations —                               olive oil, wine, cotton and tobacco,
Appointment procedure — Action for annulment —
      Appeal manifestly inadmissible and unfounded)
                          ( 97/C 142/ 16 )
                                                                      — order the Commission to remove the qualification
                                                                           made by it in respect of the clearance of accounts for
                                                                           1990 and to refund to the applicant the deducted sum
                (Language of the case: French)                             of Dr 4 500 000 000 .
  (Provisional translation; the definitive translation will be        Pleas in law and main arguments adduced in support:
         published in the European Court Reports)
In Case C-303/96 P: Giorgio Bernardi ( Lawyer: Giancarlo              In its application, the Hellenic Republic alleges numerous
Lattanzi ) — appeal against the judgment of the Court of              errors of fact in relation to each of the products, olive oil,
First Instance of 11 July 1996 in Case T-146/95 Bernardi              wine, cotton and tobacco, and misinterpretation of the
v. Parliament, not yet published in the European Court                regulations . It also alleges that the Commission misused
Reports, seeking to have that judgment set aside, the other           its powers or exceeded the limits of its discretion.
party to the proceedings being the European Parliament
( Agent: Ezio Perillo, assisted by Denis Waelbroeck ) — the
Court ( First Chamber), composed of: L. Sevon, President              As regards the qualification made by the Commission, the
of the Chamber, D. A. O. Edward and M. Wathelet                       applicant alleges that the Commission was obliged to
( Rapporteur ), Judges; D. Ruiz-Jarabo Colomer, Advocate­             make immediate final payment of the corresponding
                                                                      financial correction with the clearance of the accounts for
General; R. Grass, Registrar, has made an order on
                                                                      1992 .
6 March 1997, in which it:
1 . dismisses the appeal;                                             H OJ No L 323 , 13 . 12 . 1996 , p . 26 .
2 . orders Mr Bernardi to pay the costs.
H OJ No C 40, 8 . 2 . 1997.
                                                                      Action brought on 11 February 1997 by the Italian
                                                                      Republic against the Commission of the European
                                                                                                 Communities
                                                                                              ( Case C-59/97 )
Action brought on 6 February 1997 by the Hellenic
                                                                                                ( 97/C 142/18
Republic against the Commission of the European
                           Communities
                        ( Case C-46/97 )
                                                                      An action against the Commission of the European
                          ( 97/C 142/17)                              Communities was brought before the Court of Justice of
                                                                      the European Communities on 11 February 1997 by the
                                                                      Italian Republic, represented by Gianni De Bellis, Avvoca­
An action against the Commission of the European                      to dello Stato, with an address for service in Luxembourg
Communities was brought before the Court of Justice of                at the Italian Embassy, 5 Rue Marie-Adelaide .
the European Communities on 6 February 1997 by the
Hellenic Republic, represented by Ioannis-Konstantinos
Khalkias, Member of the State Legal Service, and                      The applicant claims that the Court should:
Panagiotis Milonopoulos, Legal Adviser in the Special
Department for Community Legal Affairs, with an address
for service in Luxembourg at the Greek Embassy, 117 Val               — annul the decision of the Commission of 20 November
Sainte-Croix.                                                              1996 No C(96)3274 final in so far as it refuses to
                                                                           allow charging to the EAGGF of Lit 11 934 331 913
The applicant claims that the Court should:                                in the clearance of accounts submitted by the Italian
                                                                           Republic in respect of expenditure in 1992,
— annul Commission Decision E ( 96 ) 3274 of
    20 November 1996 amending Decision 96/31 1/EC on                  — order the defendant to pay the costs of proceedings .
 ---pagebreak--- 10 . 5 . 97         EN                     Official Journal of the European Communities                                  No C 142/9
Pleas in law and main arguments adduced in support:                   Turin v. Ministero . delle Finanze dello Stato on the
                                                                      following question:
The Government considers that the decision of the
Commission is unlawful in so far as it orders a financial             If the judgment of the Court of Justice of 20 April 1993 in
adjustment for the purpose of clearing the EAGGF                      Joined Cases C-71/91 and C-178/91 Ponente Carni Spa
accounts with regard to the sum of Lit 11 934 331 913                 and Cispadana Costruzioni Spa v. Amministrazione delle
and accordingly challenges the decision itself, seeking the           Finanze dello Stato (*) on a reference made under
partial annulment thereof on the following ground:                    Article 177 of the EEC Treaty on the interpretation of
                                                                      Articles 10 and 12 of Council Directive 69/335/EEC (2 )
Infringement of Article                  11   of Commis­              and those Articles of that Directive must be interpreted —
sion Regulation ( EEC )                No      2677 / 85 of           in proceedings brought before the national court for
24 September 1985                                                     repayment of taxes paid pursuant to national legislation
                                                                      ( Article 3 of Decree-Law No 853 of 19 December 1984,
                                                                      enacted as Law No 17/1985 , as amended ) contrary to that
The Azienda per gli Interventi nel Mercato Agricola ( State           Directive — as meaning that the prescription periods laid
Board for Intervention in the Agricultural Market, AIMA)              down by Article 13 of Decree No 641 /72 of the President
observed the provisions contained in Article 11 of                    of the Republic may or may not be relied upon in order to
Regulation ( EEC ) No 2677/85 in respect of security.                 refuse such repayment and, if they may be so relied upon,
                                                                      as meaning that those periods must start running on the
The allegations made in the Summary Report are untrue                 date of payment or at the time when the aforementioned
with regard to 82 instances 'relating to applications for             Directive was properly transposed into national law ?
aid unduly paid, covered, moreover, by valid security and
which has not yet been recovered from the national                    H [ 1993 ECR 1-1915 .
authority'.                                                           (2 ) OJ, English Special Edition 1969(11), p. 412.
Some amounts have already been received and paid to the
EAGGF. In respect of others, the sums have been
recovered by being set off against other amounts which
were payable . In one instance, the credit which fell to be
recovered is guaranteed by means of a voluntary first                 Action brought on 7 March 1997 by the Commission of
mortgage. In many other cases, the necessary executive                    the European Communities against the Italian Republic
procedures have been put in place for the compulsory                                            ( Case C-101/97)
recovery of amounts due.
                                                                                                   97/C 142/20 )
Finally, a special situation is that regarding the 'Caruso
Rosa' company, in respect of which the 'AgencontroP                   An action against the Italian Republic was brought before
found that there had been infringements, without,                     the Court of Justice of the European Communities on
however, succeeding in quantifying the amount of the aid              7 March 1997 by the Commission of the European
unduly paid. In the absence of reliable information, it has           Communities, represented by Enrico Traversa, of its Legal
not been possible to forfeit the securities. To that end, the         Service, acting as Agent, with an address for service at the
Guardia di Finanza has therefore been requested to                    office of Carlos Gomez de la Cruz, Wagner Centre,
investigate further and when such investigation is                    Kirchberg.
completed any aid unduly received by the undertaking will
be recovered .                                                        The applicant claims that the Court should:
                                                                      — declare that, by adopting and maintaining in force a
                                                                            law relating to value added tax which does not permit
                                                                            deduction of the tax in respect of real property
                                                                            acquired, even by means of financial leasing, in joint
Reference for a preliminary ruling from the Tribunale                       ownership or co-ownership with persons who are not
Civile e Penale di Torino — Prima Sezione Civile — by                       acting in connection with carrying on a business, trade
order of that court of 14 February 1997 in the case of CIF                  or profession, the Italian Republic has failed to fulfil
srl, operating in Turin, v. Ministero delle Finanze dello                   its obligations under Article 17 ( 2 ) ( a ) of Council
                              Stato                                         Directive 77/388/EEC of 17 May 1977 H ( the Sixth
                       ( Case C-98/97 )                                     VAT Directive ),
                         ( 97/C 142/19 )                              — order the Italian Republic to bear the costs.
Reference has been made to the Court of Justice of the                Pleas in law and main arguments adduced in support:
European Communities by order of the Tribunale Civile e
Penale di Torino — Prima Sezione Civile — ( Civil and                 The Commission cannot but note the glaring discrepancy
Criminal Court, Turin, First Civil Section ) of 14 February           between Article 19 (2 ) ( e ) ( b ) of the Italian Presidential
1997, received at the Court Registry on 6 March 1997,                 Decree and Article 17 (2 ) ( a ) of the Sixth Directive, as
for a preliminary ruling in the case of CIF srl, operating in         interpreted in the decisions of the Court.