CELEX: C1998/151/09
Language: en
Date: 1998-05-16 00:00:00
Title: Reference for a preliminary ruling from the Consiglio di Stato (Council of State) by order of that court of 20 January 1998, in the case of Questore di Verona (Chief of Police of Verona) v. Diego Zenatti (Case C-67/98)

C 151/6               EN                 Official Journal of the European Communities                                    16.5.98
    of equal treatment in relation to the second tendering          Reference for a preliminary ruling by Tribunal de Grande
    procedure, and error in law in relation to the evidence         Instance (First Chamber), Lyon, by judgment of that court
    that the principle of equal treatment was infringed at          of 25 February 1998, in the case of SA Gougenheim
    the time of the second tendering procedure,                     Imprimerie PubliciteÂ v. Directeur des Services Fiscaux du
                                                                                                Rhône
Ð infringement of Articles 1 and 6 of Regulation (EEC)                                     (Case C-72/98)
    No 3389/73 (3) and Article 7(2) of Regulation (EEC)
                                                                                            (98/C 151/10)
    No 727/70 (4) concerning the Commission's wide
    discretion and its right not to accept favourable
    tenders made in tendering procedures (contested
    Commission decisions of 7 August and 16 November
                                                                    Reference has been made to the Court of Justice of the
    1990), and incorrect appraisal as to whether the
                                                                    European Communities by an judgment of the First
    contested decisions are measures of economic policy,
                                                                    Chamber of the Tribunal de Grande Instance (Regional
                                                                    Court), Lyon, which was received at the Court Registry on
Ð infringement of the audi alteram partem principle and             16 March 1998, for a preliminary ruling in the case of SA
    of the principle of equality of the parties,                    Gougenheim Imprimerie PubliciteÂ v. Directeur des Services
                                                                    Fiscaux du Rhône, on the following questions:
Ð inappropriate application to the actual events of the
    prohibition of discrimination (principle of equal
                                                                    1. Where a Directive (Council Directive 73/80/EEC (1))
    treatment) and of the increase of the guarantee at the
                                                                        amends an earlier Directive (Council Directive 69/335/
    time of the fourth tendering procedure,
                                                                        EEC (2)) and specifies that the capital duty with which
                                                                        they are concerned is to be 1 % as from 1 January
Ð infringement and incorrect legal assessment of the                    1976, and the domestic law of a Member State
    validity of Commission Regulation (EEC) No 395/                     maintains a higher rate, and where in particular a
    90 (5) regarding the reduction of the time limit                    third Directive (Council Directive 85/303/EEC (3))
    in Article 3 of Commission Regulation (EEC)                         later provides that the Member States are to exempt
    No 3389/73.                                                         from capital duty transactions which were, as at 1 July
                                                                        1984, exempted or taxed at a rate of 0,50 % or less,
                                                                        must it be considered in the absence of a rate
(1) OJ C 55, 20.2.1998, p. 23.
                                                                        applicable under domestic law:
(2) OJ C 268, 14.10.1995, p. 26.
(3) OJ L 345, 15.12.1973, p. 47.
(4) OJ L 94, 28.4.1970, p. 1.
(5) OJ L 42, 16.2.1990, p. 46.                                          Ð either that, as a result of non-transposition into
                                                                            domestic law of the rate fixed by the Community
                                                                            provision and by reason of the principle of non-
                                                                            application of downward direct effect', no legally
                                                                            applicable rate existed,
Reference for a preliminary ruling from the Consiglio di                Ð or that the domestic law of that Member State was
Stato (Council of State) by order of that court of                          only partially inapplicable' having regard to the
20 January 1998, in the case of Questore di Verona (Chief                   Community        Directive   73/80/EEC     and    in
            of Police of Verona) v. Diego Zenatti                           consequence the application of a rate of 1 %
                        (Case C-67/98)                                      should be allowed on the basis of the principle of
                                                                            downward direct effect where there is a clear and
                         (98/C 151/09)                                      precise provision which involves no other
                                                                            condition'?
Reference has been made to the Court of Justice of the
European Communities by an order of the Consiglio di
                                                                    2. If, by virtue of the application of Directive 73/80/EEC,
Stato of 20 January 1998, which was received at the
                                                                        a positive answer were to be given regarding the
Court Registry on 13 March 1998, for a preliminary
                                                                        second alternative set out above, but having regard to
ruling in the case of Questore di Verona v. Diego Zenatti
                                                                        the fact that Directive 85/303/EEC of 10 June 1985
on the following questions:
                                                                        amended Article 7(2) of the latter as from its entry
                                                                        into force on 1 January 1986 by stating that Member
Do the Treaty provisions on the provision of services                   States may either exempt from capital duty all
preclude rules such as the Italian betting legislation in               transactions . . . or charge duty on them at a single
view of the social policy concerns and of the concern to                rate not exceeding 1 %' and to the fact that, by that
prevent fraud that justify it?                                          date, a Member State had not yet transposed the latter
                                                                        directive into its internal law but, on the contrary,
                                                                        retained a rate far higher than the 1 % previously
                                                                        authorised: