CELEX: C1998/209/30
Language: en
Date: 1998-07-04 00:00:00
Title: References for a preliminary ruling from the Consiglio di Stato (Council of State) by orders of that court of 20 January 1998, in the cases of (1) Questore (senior police official), Macerata v. Claudio Peroni, (2) Questore, Genoa v. Eliana Fasciolo, (3) Questore, Genoa v. Umberto Merlo, (4) Questore, Catanzaro v. Patrizia Caffarelli, (5) Questore, Milan v. Chiara Picerno, (6) Questore, Imperia v. Gianluca Barrese, Andrea De Sanctis and SaS Riviera, (7) Questore, Pavia v. Giovanni Giacchetto and (8) Questore, Savona v. Francesco Amato (Case C-86/98 to C-93/98)

C 209/16             EN                  Official Journal of the European Communities                                    4.7.98
    Exemptions from the one-month delay                                  an aid measure which the Commission has held to be
    r u l e f o r t h e d e d u c t i o n o f VAT f r o m                incompatible with the common market, it may itself,
    1 January 1989 onwards                                               in accordance with the fundamental principles of
                                                                         Community law, take this into account in order to
    The French Government points out that this measure                   waive reimbursement of the measure in question.
    enabled the PMU to deduct VAT paid on its
    purchases by reference to the month when those                  (1) OJ C 90, 26.3.1994, p. 23.
    purchases were made and not the following month,
    as would have been the normal rule.
    Since its inception in 1969, that cash-flow facility
    was offset, however, by the lodging of a permanent
    non-interest-bearing deposit with the Treasury.
                                                                    References for a preliminary ruling from the Consiglio di
                                                                    Stato (Council of State) by orders of that court of
    It is true, as the Court of First Instance observed, that
                                                                    20 January 1998, in the cases of (1) Questore (senior
    the Commission made a factual error in its decision
                                                                    police official), Macerata v. Claudio Peroni, (2) Questore,
    in so far as it stated that the Treasury deposit had
                                                                    Genoa v. Eliana Fasciolo, (3) Questore, Genoa v. Umberto
    only existed since 1989.
                                                                    Merlo, (4) Questore, Catanzaro v. Patrizia Caffarelli, (5)
                                                                    Questore, Milan v. Chiara Picerno, (6) Questore, Imperia
    The Commission considered that the measure at issue
                                                                    v. Gianluca Barrese, Andrea De Sanctis and SaS Riviera,
    constituted a State aid, compatible with the common
                                                                    (7) Questore, Pavia v. Giovanni Giacchetto and (8)
    market before 1989 by reason of the fact that any
                                                                               Questore, Savona v. Francesco Amato
    disturbance thereby caused to the common market
    was negligible. After 1 January 1989, by reason of                                (Case C-86/98 to C-93/98)
    the existence of the compensatory deposit with the                                       (98/C 209/30)
    Treasury, the Commission took the view that it no
    longer constituted State aid.
                                                                    Reference has been made to the Court of Justice of the
    The Court of First Instance annulled the                        European Communities by orders of the Consiglio di Stato
    Commission's assessment regarding the period after              of 20 January 1998, which were received at the Court
    1 January 1989 on the basis of factors essentially              Registry on 13 March 1998, for a preliminary ruling in
    related to the preceding period and the mere finding            the cases of (1) Questore, Macerata v. Claudio Peroni,
    that the compensation for the year 1989 had been                (2) Questore, Genoa v. Eliana Fasciolo, (3) Questore,
    inadequate.                                                     Genoa v. Umberto Merlo, (4) Questore, Catanzaro v.
                                                                    Patrizia Caffarelli, (5) Questore, Milan v. Chiara Picerno,
    However, the Court of First Instance could not rely             (6) Questore, Imperia v. Gianluca Barrese, Andrea De
    solely on those factors in order to infer that the              Sanctis and SaS Riviera, (7) Questore, Pavia v. Giovanni
    Commission's assessment in respect of the entire                Giacchetto and (8) Questore, Savona v. Francesco Amato
    period after 1 January 1989 was erroneous. In this              on the following question:
    respect also the judgment of the Court of First
    Instance is vitiated by flawed reasoning and by an              Do the Treaty provisions on the provision of services
    inadequate statement of grounds.                                preclude rules such as the Italian betting legislation in
                                                                    view of the social policy concerns and of the concern to
(B) Recovery of aid which is incompatible with the                  prevent fraud that justify it?
    common market
    Since the Commission found in its Decision that the
    PMU's exemption from the housing levy as from
    1989 was incompatible with the Treaty, but that the
    recipient was required to repay amounts involved
    only with effect from the date when the procedure               Action brought on 7 April 1998 by the Republic of
    was opened in 1991, by reason of the fact that it                     Austria against the Commission of the European
    could legitimately have entertained expectations                                          Communities
    based on the earlier decision of the Conseil d'EÂtat,                                   (Case C-99/98)
    the Court of First Instance essentially held that the                                    (98/C 209/31)
    Commission could not itself take into account the
    recipient's legitimate expectations, as relied upon by
    the Member State, in order to dismiss the                       An action against the Commission of the European
    requirement to repay aid which it deemed                        Communities was brought before the Court of Justice of
    incompatible with the common market.                            the European Communities on 7 April 1998 by the
                                                                    Republic of Austria, represented by Dr. Wolf Okresek,
    The French Government believes that the judgment                Head of Section, Director of the Constitutional Section of
    of the Court of First Instance is also vitiated in this         the Office of the Federal Chancellor of the Republic of
    respect by an error of law and that when the                    Austria, with an address for service in Luxembourg at the
    Commission is advised by a Member State of                      office of Dr. Josef Magerl, Ambassador, Austrian Embassy,
    legitimate expectations on the part of the recipient of         3 Rue des Bains.