CELEX: C1996/031/24
Language: en
Date: 1996-02-03 00:00:00
Title: Appeal brought on 27 November 1995 by the French Republic against the judgment delivered on 18 September 1995 by the First Chamber (enlarged composition) of the Court of First Instance of the European Communities in Case T-548/93 between Ladbroke Racing Ltd and the Commission of the European Communities, supported by the French Republic (Case C-379/95 P)

No C 31 / 12               EN               Official Journal of the European Communities                                    3 . 2 . 96
      ( b ) Article 3 ( 1 ) of Law No 363/76 ( as last replaced by     similar reduction is provided for second-hand cars with the
            Article 2 ( 7 ) of Law No 2187/ 1994 ) which governs       latest technology this has created discrimination to the
            payment of the flat-rate added special duty without        detriment of imported second-hand cars with the latest
            any reduction for used cars; and                           technology in relation to equivalent Greek cars, since the
                                                                       residual portion of the reduced tax is incorporated in the
      ( c ) Article 1 of Law No 1858/1989 , as subsequently            latters' value, whereas the special consumption tax is
            amended by Laws No 1882/1990 ( Articles 37 ( 2 )           charged on the importation of the former without the
            and 42 ( 1 )) and No 2093/ 1992 ( Article 10 ) which       reduction provided for anti-pollutant cars .
            now applies with Article 2 ( 1 ) of Law
            No 2187/1 994, by which tax advantages ( reduction         The practical difficulties invoked by the Hellenic Republic
            of the special consumption tax ) are granted only to       cannot justify such an infringement of the first paragraph of
            new anti-pollutant cars and not to imported                Article 95 of the Treaty, as is clear from the consistent
            second-hand anti-pollutant cars,                           case-law of the Court of Justice .
      the Hellenic Republic is in breach of its obligations
      pursuant to Article 95 of the EC Treaty;
2 . order the Hellenic Republic to pay the costs .
                                                                       Reference for a preliminary ruling by the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Roma — Sezione Distaccata di Tivoli by
                                                                       order of that court of 15 and 22 November 1995 in criminal
A. Special consumption tax                                               proceedings against Tersilio Onorati and Palma Marulli
                                                                                     ( Cases C-377/95 and C-378/95 )
This tax is levied on cars manufactured in Greece when they
                                                                                                  ( 96/C 31 /23 )
first circulate as new cars and also on imported cars on
importation either new or second-hand . Accordingly the tax
is not levied on second-hand Greek cars .                              Reference has been made to the Court of Justice of the
                                                                       European Communities by orders of the Pretura
                                                                       Circondariali di Roma — Sezione Distaccata di Tivoli
The tax is levied on imported second-hand cars on the basis
of their presumed value , which is calculated by means of a            ( Rome District Magistrate's Court, Tivoli Division ) of 15
reduction from the price of equivalent new cars of 5 % for             and 22 November 1995 , which were received at the Court
each year of use , up to a maximum of 20% . In the                     Registry on 4 December 1995 , for a preliminary ruling in
Commission 's view, since                                              criminal proceedings against Tersilio Onorati and Palma
                                                                       Marulli
( a ) the actual reduced value of the cars exceeds 5 % per
        annum ;
                                                                       The questions referred by the Pretura Circondariale di
                                                                       Roma — Sezione Distaccata di Tivoli to the Court of Justice
                                                                       for a preliminary ruling are identical with those in Case
( b ) that reduction is not linear, but greater in the first years     C-58/95 ( M.
        and less subsequently;
                                                                       (>) OJ No C 119 , 13 . 5 . 1995 , p . 6 .
( c ) there is no provision for a reduction greater than
        20% ,
those rules result in higher taxation of imported cars,
because the residual ( incorporated ) portion of the tax in the
value of second-hand cars manufactured in Greece is less
than the amount of the tax levied on imported second-hand              Appeal brought on 27 November 1995 by the French
cars .
                                                                       Republic against the judgment delivered on 18 September
                                                                       1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
Accordingly this amounts to a breach of the first paragraph            Case T-548/93 ( ] ) between Ladbroke Racing Ltd and the
of Article 95 of the Treaty .                                          Commission of the European Communities, supported by
                                                                                            the French Republic
B.      Flat-rate added special duty                                                         ( Case C-379/95 P)
                                                                                                    96/C 31 /24
The method of calculating this duty is the same as that used
in calculating the special consumption tax. Consequently
                                                                       An appeal against the judgment delivered on 18 September
the same comments as above apply by analogy.
                                                                        1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
C. Special consumption tax on anti-pollutant cars                      Case T-548/93 between Ladbroke Racing Ltd and the
                                                                        Commission of the European Communities was brought
By successive laws the Hellenic Republic has reduced in                 before the Court of Justice of the European Communities on
recent years the special consumption tax levied on new cars            27 November 1995 by the French Republic, represented by
with the latest technology ( anti-pollutant cars ). Since no           Jean-Marc Belorgey, Catherine de Salins and Jean-Francois
 ---pagebreak--- 3 . 2 . 96               EN I             Official Journal of the European Communities                                 No C 31 / 13
Dobelle , acting as Agents, with an address for service in           against a Member State for national legislation which is
Luxembourg at the French Embassy, 9 Boulevard Prince                 incompatible with the Treaty .
Henri
                                                                     (') OJ No C 286 , 28 . 10 . 1995 p . 12 .
The appellant claims that the Court should :
— annul the judgment of the Court of First Instance of
     18 September 1995 in Case T-548/93 , Ladbroke Racing
     Ltd v. Commission of the European Communities in so             Action brought on 5 December 1995 by the Commission of
     far as that judgment annuls the decision of the                 the European Communities against the Hellenic Republic
     Commission contained in the letter of 29 July 1993
                                                                                             ( Case C-380/95 )
     rejecting Ladbroke 's complaint of 29 November
     1989 ,                                                                                      ( 96/C 31 /25 )
— uphold the submissions put forward by the Commission               An action against the Hellenic Republic was brought before
     at first instance .                                             the Court of Justice on 5 December 1995 by the
                                                                     Commission of the European Communities , represented by
                                                                     Maria Kontou Durande of its Legal Service, with an address
Pleas in law and main arguments adduced in support:                  for service in Luxembourg at the office of Carlo Gomez de la
                                                                     Cruz, also of the Commission 's Legal Service, Wagner
The French Government considers that the Court of First              Centre, Kirchberg.
Instance erred in law in a number of respects .
                                                                     The applicant claims that the Court should :
In the first place , and principally, the French Government
considers that the Court's reasoning fails to take account of        1 . declare that, by failing to adopt within the prescribed
the case-law on the conduct of undertakings in the context                period the laws, regulations or administrative provisions
of national legislation which leaves no room for autonomy                 necessary to comply with Council Directive 91 /414/EEC
in such conduct .                                                         of 15 July 1991 concerning the placing of plant
                                                                          protection products on the market, the Hellenic
Where such conduct is required by statute, that is to say,                Republic has failed to fulfil its obligations under the
when there is no scope for autonomy as regards conduct                    Treaty and that Directive;
which may be the subject of a complaint, the application of
Articles 85 and 86 to the undertakings responsible must be           2 . order the Hellenic Republic to pay the costs .
excluded as long as the relevant legislation remains in
force .                                                              Pleas in law and main arguments adduced in support:
The French Government considers that when a complaint                Pursuant to the second paragraph of Article 169 of the
based on Articles 85 , 86 and 90 of the Treaty and                   Treaty, the Commission requests the Court to declare that,
concerning both the conduct of undertakings and national              by failing to take the necessary steps within the prescribed
measures relevant thereto has been brought before the                period ( which expired on 25 July 1993 ) to transpose into
Commission, it is bound to ascertain whether the national             Greek law Council Directive 91 /414/EEC of 15 July 1991
measures leave some degree of autonomy to the                        concerning the placing of plant protection products on the
undertakings . If they do not, the Commission must reject             market ('), the Hellenic Republic has failed to fulfil its
that part of the complaint which is based on Articles 85 and          obligations under the Treaty and the Directive .
 86 having to rule on the part of the complaint which
concerns the compatibility of the national measures with the          (') OJ No L 230 , 19 . 8 . 1991 , p . 1 .
Treaty . The Court of First Instance erred in law in its
reasoning, therefore, in deciding that the Commission
 should have completed its examination of the compatibility
 of the French legislation with the Treaty before rejecting the
 part of Ladbroke's complaint concerning Articles 85 and 86
 of the Treaty .                                                      Action brought on 6 December 1995 by the Commission
                                                                      of the European Communities against the Kingdom of
                                                                                                       Spain
 In the second place , the judgment appealed against takes no
 account of the consistent case-law to the effect that natural                                ( Case C-381 /95 )
 or legal persons who have sought confirmation from the                                            ( 96/C 31 /26 )
 Commission, pursuant to Article 3 ( 2)b of Regulation
 17/62 , that a breach of those articles has occurred are not         An action against the Kingdom of Spain was brought before
 entitled to demand that a decision be made as to whether or          the Court of Justice of the European Communities on
 not the alleged breach exists .                                      6 December 1995 by the Commission of the European
                                                                      Communities , represented by Miguel Diaz-Llanos La
 Lastly, the judgment has the effect of negating the                  Roche, with an address for service in Luxembourg at the
 Commission's discretion in deciding whether to take action           office of Carlos Gomez de la Cruz .