CELEX: C1999/352/32
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-339/99: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Austria, by order of that court of 1 September 1999 in the appeal proceedings brought by Energie Steiermark Holding AG against Finanzlandesdirektion für Steiermark

4.12.1999              EN                   Official Journal of the European Communities                                      C 352/21
Action brought on 1 September 1999 by the Italian                      The decision is unlawful in that it infringes and misapplies
Republic against Commission of the European Communi-                   Articles 87 and 88 EC and the EEA Agreement, both substan-
                                ties                                   tively and procedurally, and there is no adequate statement of
                                                                       reasons concerning the recovery of the aid at issue.
                         (Case C-328/99)
                        (1999/C 352/30)
                                                                       Reference for a preliminary ruling by the Commissione
An action against the Commission of the European Communi-
                                                                       Tributaria di Primo Grado di Trento, Sezione No 6 by
ties was brought before the Court of Justice on 1 September
                                                                       order of that court of 29 April 1999 in the case of Hotel
1999 by the Italian Republic, represented by its Agent,
                                                                       Bellavista di Litterini and Others against Ufficio Imposte
Professor Umberto Leanza, assisted by Oscar Fiumara, Avvoca-
                                                                       Dirette di Tione di Trento and Centro di Servizio delle
to dello Stato, with an address for service in Luxembourg at
                                                                                    Imposte Dirette e Indirette di Trento
the Italian Embassy, 5 Rue Marie-Adélaide.
                                                                                                 (Case C-330/99)
The applicant claims that the Court should:
                                                                                                 (1999/C 352/31)
— Annul Decision C(1999) 1524 Final of the Commission of               Reference has been made to the Court of Justice of the
     the European Communities of 2 June 1999, to the extent            European Communities by order of the Commissione Tributa-
     to which it is contested in these proceedings;                    ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
                                                                       Instance, Trento, Sixth Chamber) of 29 April 1999, received
— In the alternative, annul the part of the said decision which        at the Court Registry on 2 September 1999, for a preliminary
     directs that sums constituting unlawful aid in relation to        ruling in the case of Hotel Bellavista di Litterini and Others v
     REL action in 1996 are to be recovered from Seleco;               Ufficio Imposte Dirette di Tione di Trento and Centro di
                                                                       Servizio delle Imposte Dirette e Indirette di Trento on the
                                                                       following question:
— In the further alternative, annul the part of the said decision
     which directs that sums constituting unlawful aid are to be       ‘Is it compatible with Community law, and in particular with
     recovered from Seleco Multimedia Srl and from any other           Directive 69/335/EEC (1), to tax over a period of years at
     undertaking which has benefited from asset transfers in           the rate of 0,75 % per annum pursuant to Decree-Law
     the operations concerned;                                         No 394/1992 of 30 September 1992 that part of the net assets
                                                                       consisting solely of a company’s capital disclosed annually by
— Order the Commission to pay the costs.                               the balance sheet which has already borne the initial tax on
                                                                       contributions of 1 %?’
                                                                       (1) OJ, English Special Edition 1969 (II), p. 412.
Contentions and principal arguments adduced in support
The decision is unlawful in that it infringes and misapplies
Articles 87 and 88 EC (ex Articles 92 and 93 of the EC Treaty)
and the corresponding provisions of the EEA Agreement
because it treats as unlawful aid the assistance referred to           Reference for a preliminary ruling by the Verwaltungs-
above provided by REL (Ristrutturazione Elettronica SpA) and           gerichtshof, Austria, by order of that court of 1 September
FRIULA, despite the fact that the aid from FRIULA cannot be            1999 in the appeal proceedings brought by Energie
regarded as State aid and despite the fact that in any event the       Steiermark Holding AG against Finanzlandesdirektion für
aid in both cases is consistent with that which might have                                          Steiermark
been provided (and in fact was provided in parallel) by private
investors operating under the normal conditions of a market
economy.                                                                                         (Case C-339/99)
                                                                                                 (1999/C 352/32)
The decision is unlawful through lack of an adequate statement
of the reasons on which it is based (the reasons given are             Reference has been made to the Court of Justice of the
inadequate, contradictory and manifestly illogical) because it         European Communities by order of the Verwaltungsgerichts-
treats the aid as unlawful without giving an appropriate and           hof (Higher Administrative Court), Austria, of 1 September
coherent explanation, taking account not only of the assistance        1999, received at the Court Registry on 13 September 1999,
given on a coordinated basis by private investors but also of          for a preliminary ruling in the appeal proceedings brought by
that from those deemed to be public investors without there            Energie Steiermark Holding AG against Finanzlandesdirektion
being any appreciable strategic differences between the two            für Steiermark (Tax Board for the Land of Styria) on the
categories.                                                            following questions:
 ---pagebreak--- C 352/22                EN                       Official Journal of the European Communities                                     4.12.1999
1.     Do payments which a new shareholder, allowed to                      (a) requires undertakings, other than that on which the
acquire the new shares on an increase in capital (where the                     monopoly to operate the universal service has been
pre-emptive right of the existing shareholders is excluded),                    conferred, to pay, even when providing ‘non-universal’ or
does not make itself but makes through its parent company                       ‘value-added’ services, the postal dues payable for the basic
amount to ‘a contribution of assets of any kind’ within the                     ordinary postal service, which in such a case is not in
meaning of Article 4(1)(c) of Council Directive 69/335/EEC of                   actual fact provided by the monopoly-holder.
17 July 1969 concerning indirect taxes on the raising of
capital? (1)
                                                                            (b) directly allocates the proceeds of those dues to the
                                                                                undertaking entrusted with the operation of the universal
2.     Do payments which a new shareholder, allowed to                          service, without there being any offsetting or control
acquire the new shares on an increase in capital (where the                     mechanism to preclude the allocation of cross-subsidies to
pre-emptive right of the existing shareholders is excluded),                    non-universal services.
makes not to the company increasing its capital but to its
subsidiary companies amount to ‘a contribution of assets of
any kind’ within the meaning of Article 4(1)(c) of Directive
69/335/EEC?
3.     Do payments which have not yet been made amount to
‘a contribution of assets of any kind’ within the meaning of
Article 4(1)(c) of Directive 69/335/EEC?
4.     Is the capital duty to be paid by the company a ‘liability’
or ‘expense’ which, in accordance with Article 5(1)(a) of
Directive 69/335/EEC, is to be deducted from the basis of                   Reference for a preliminary ruling by the Landesgericht
assessment?                                                                 Korneuburg by order of 1 September 1999 in the case of
                                                                                      SEIKO Kabushiki Kaisha v Rashad Wali
(1) OJ, English Special Edition 1969 (II), p. 412.
                                                                                                    (Case C-341/99)
                                                                                                    (1999/C 352/34)
                                                                            Reference has been made to the Court of Justice of the
Reference for a preliminary ruling by the Tribunale Civile                  European Communities by order of 1 September 1999 from
di Genova by judgment of that court of 21 June 1999 in                      the Landesgericht Korneuburg (Regional Court, Korneuburg)
the case of TNT Traco SpA against Poste Italiano and                        (Republic of Austria), which was received at the Court Registry
 Michele Carbone, Raffaele Ciriolo and Clemente Marino                      on 14 September 1999, for a preliminary ruling in the case of
                                                                            SEIKO Kabushiki Kaisha v Rashad Wali on the following
                                                                            question:
                          (Case C-340/99)
                          (1999/C 352/33)                                   On a proper construction of Article 1 thereof, is Council
                                                                            Regulation (EC) No 3295/94 of 22 December 1994 laying
                                                                            down measures to prohibit the release for free circulation,
Reference has been made to the Court of Justice of the                      export, re-export or entry for a suspensive procedure of
European Communities by judgment of the Tribunale Civile di                 counterfeit and pirated goods (Official Journal of the European
Genova (Genova District Court) of 21 June 1999, received at                 Communities L 341 of 30 December 1994) also applicable to
the Court Registry on 13 September 1999, for a preliminary                  situations in which goods of the type specified therein are, in
ruling in the case of TNT Traco SpA v Poste Italiano and                    the course of transit between two countries not belonging to
Michele Carbone, Raffaele Ciriolo and Clemente Marino on the                the European Community, temporarily detained by the cus-
following questions:                                                        toms authorities in a Member State on the basis of that
                                                                            regulation, at the request of a holder of rights who claims that
Do the provisions of the EC Treaty, and in particular                       his rights have been infringed and whose undertaking has its
Articles 86 and 90 thereof, preclude a Member State, in                     registered office in a non-member country?
organising its postal service, from maintaining in force legis-
lation which, though distinguishing between so-called ‘univer-
sal’ services in respect of which exclusive rights are conferred
on a private-law undertaking and non-universal services
offered and provided under a regime of free competition: