CELEX: C2001/134/08
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-59/01: Action brought on 12 February 2001 by the Commission of the European Communities against the Italian Republic

C 134/4                EN                       Official Journal of the European Communities                                         5.5.2001
Reference for a preliminary ruling from the Bundesfi-                      Reference for a preliminary ruling by the Special Com-
nanzhof, by order of that court of 14 December 2000                        missioners (United Kingdom), by order of 6 February
in the case of Christoph-Dornier-Stiftung für Klinische                    2001, in the case of Océ van der Grinten NV against
           Psychologie against Finanzamt Giessen                                           Inland Revenue Commissioners
                          (Case C-45/01)                                                             (Case C-58/01)
                         (2001/C 134/06)                                                            (2001/C 134/07)
Reference has been made to the Court of Justice of the                     Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof                       European Communities by an order of the Special Com-
(Federal Finance Court) of 14 December 2000, received at the               missioners (United Kingdom) of 6 February 2001, which was
Court Registry on 2 February 2001, for a preliminary ruling in             received at the Court Registry on 12 February 2001, for a
the case of Christoph-Dornier-Stiftung für Klinische Psycholog-            preliminary ruling in the case of Océ van der Grinten NV
ie against Finanzamt Giessen on the following questions:                   against Inland Revenue Commissioners, on the following
                                                                           questions:
1.   Does psychotherapeutic treatment, given in an out-
     patient facility provided by a foundation (charitable                 1.    In the circumstances set out in the Order for reference, is
     establishment) employing qualified psychologists who                        the 5 % charge specified in sub-paragraph (a)(ii) of
     are licensed under the Medical Practitioners Law (Heil-                     Article 10.3 of the UK/Netherlands Double Taxation
     praktikergesetz) but who are not registered as doctors,                     Convention 1980 (‘the 5 % charge’) a withholding tax on
     qualify as ‘closely related activities’ to hospital and medical             profits which a subsidiary distributes to its parent com-
     care within the meaning of Article 13A(1)(b) of Directive                   pany within article 5.1 of Council Directive
     77/388/EEC (1)?                                                             90/435/EEC (1) of 23 July 1990 (‘the Directive’)?
2.   In order for there to be an ‘other duly recognized                    2.    If the 5 % charge is such a withholding tax is its effect
     establishment of a similar nature’ within the meaning of                    preserved as a consequence of Article 7.2 of the Directive?
     Article 13A(1)(b) of Directive 77/388/EEC, must there be
     a formal recognition procedure or can recognition also
                                                                           3.    If the 5% charge is preserved only as a consequence of
     derive from other regulations (e.g. regulations concerning
                                                                                 article 7.2 of the Directive, is Article 7.2 invalid for want
     the assumption of costs by authorities responsible for the
                                                                                 of reasoning or failure to consult the ESC and the
     provision of social security) which apply equally to
                                                                                 European Parliament, with the result that it does not have
     hospitals, centres for medical treatment and other estab-
                                                                                 the effect of preserving the right of the United Kingdom
     lishments?
                                                                                 to charge the 5 % tax?
     Is an exemption from tax unavailable to the extent that
     the authorities responsible for providing social security
     do not reimburse, or only partially reimburse, patients               (1) on the common system of taxation applicable in the case of
                                                                               parent companies and subsidiaries of different Member States (OJ
     for the costs of psychotherapeutic treatment given by the                 L 225, 20.08.1990, p. 6).
     aforementioned employees of the plaintiff?
3.   Is the psychotherapeutic treatment provided by the
     plaintiff exempt from tax on the basis of the neutrality of
     value added tax, because the psychotherapists it employs
     could have provided the same treatment on a tax-exempt
     basis under Article 13A(1)(c) of Directive 77/388/EEC if
     they had provided it themselves as self-employed taxable
     persons?
                                                                           Action brought on 12 February 2001 by the Commission
4.   Is the plaintiff entitled to rely on the tax exemption of             of the European Communities against the Italian Republic
     its transactions involving psychotherapeutic treatment
     under Article 13A(1)(b) and (c) of Directive 77/388/EEC?                                        (Case C-59/01)
     Pending the decision of the Court of Justice of the
     European Communities, the appeal proceedings are
     stayed.                                                                                        (2001/C 134/08)
                                                                           An action against the Italian Republic was brought before the
(1) OJ 1977 L 145, p. 1.                                                   Court of Justice of the European Communities on 12 February
                                                                           2001 by the Commission of the European Communities,
                                                                           represented by Christina Tufvesson and Antonio Aresu, acting
                                                                           as Agents.
 ---pagebreak--- 5.5.2001                EN                     Official Journal of the European Communities                                       C 134/5
The applicant claims that the Court should:                               the freedom of establishment or the freedom to provide
                                                                          services actually have a duty to account to the competent
—     declare that the Italian Republic has failed to fulfil its          authorities of the Member State of origin only.
      obligations under Council Directive 92/49/EEC (1) of
      18 June 1992 on the coordination of laws, regulations
      and administrative provisions relating to direct insurance          Lastly, under the last sentence of Article 2(5)(d) of Decree
      other than life assurance and amending Directives                   No 70, insurance undertakings operating in Italy, including
      73/239/EEC and 88/357/EEC (third non-life insurance                 those that conduct their business under the freedom of
      Directive) in that it has set up and kept in force a system         establishment or the freedom to provide services, are required
      of premium controls applicable to all contracts for the             to contribute to the funding and management costs of the data
      insurance of civil liability arising from the use of motor          bank set up under Decree No 70. A requirement such as that
      vehicles in relation to risks situated within Italian territory,    is linked to the obligation to provide ISVAP with information
      without distinguishing between insurance companies                  laid down by Article 2 of Decree No 70, which is itself
      having their head office in Italy and those conducting              inconsistent with Article 44 of the directive. Consequently, the
      their business in Italy through branch offices or under the         obligation to contribute to the funding of the data bank
      freedom to provide services, in breach of:                          imposed upon undertakings operating under the freedom of
                                                                          establishment or the freedom to provide services within Italian
      (a)   the principle of the freedom to set premiums and              territory is clearly also inconsistent with Community law.
            the abolition of prior or systematic controls over
            premiums and contracts, as dealt with in Articles 6,
            29 and 39 of the said directive;
                                                                          (1) OJ 228 of 11.8.1992, p. 1.
      (b) the provisions of Article 44 of the said directive,
            which concern arrangements for gathering infor-
            mation on the amount of the premiums, claims and
            commission, the frequency and average cost of
            claims, and the exchange of information between
            the regulatory authorities of the Member State of
            origin and those of the host Member State;
—     order the Italian Republic to pay the costs of the
      proceedings.
                                                                          Appeal brought on 12 February 2001 (facsimile of 9 Feb-
                                                                          ruary 2001) by Anna Maria Campogrande against the
Pleas in law and main arguments                                           judgment delivered on 7 December 2000 by the Fourth
                                                                          Chamber of the Court of First Instance of the European
The Commission submits that:                                              Communities in Case T-136/98 between A.M. Campo-
                                                                            grande and Commission of the European Communities
Freezing the premiums and certain other components of
the contractual offer, and requiring all civil liability motor                                     (Case C-62/01 P)
insurance undertakings to offer contracts with premiums
calculated by reference to a no-claims bonus, and with full
indemnity, for between ITL 500 000 and ITL 1 000 000, are                                          (2001/C 134/09)
measures which should be regarded as inconsistent with the
principle of freedom to set premiums enshrined by Articles 6,
29 and 39 of Directive 92/49/EEC. Insurers who provide                    An appeal against the judgment delivered on 7 December
contracts covering risks situated within Italian territory do not         2000 by the Fourth Chamber of the Court of First Instance
enjoy the right to determine freely these components of their             of the European Communities in Case T-136/98 between
contractual offer. There appears to be no justification for this          A.M. Campogrande and Commission of the European Com-
restriction of the freedom to set premiums.                               munities was brought before the Court of Justice of the
                                                                          European Communities on 12 February 2001 (facsimile of
                                                                          9 February 2001) by A.M. Campogrande, represented by Anne
Article 2(5)(a) and (d) of Decree No 70 of 28 March 2000,
                                                                          Krywin, avocat, with an address for service in Luxembourg.
which confers upon ISVAP (the Istituto per la vigilanza sulle
assicurazioni private e di interesse collective, the Private and
Collective Interest Insurance Supervisory Authority) authority
                                                                          The appellant claims that the Court should:
to supervise insurance undertakings offering ‘compulsory
motor insurance’ in connection with the matters set out in
Article 2(2), (3) and (4), is incompatible with the provisions of
                                                                          Declare the present appeal admissible and well-founded;
Article 44 of the directive concerning the gathering of
information on the amount of the premiums, claims and
commissions, the frequency and average cost of claims,                    Accordingly,
and the exchange of information between the supervisory
authorities of the Member State of origin and those of the
host Member State. As regards the communication of such                   —     set aside the judgment in Case T-136/98 of the Court of
information, insurance undertakings operating in Italy under                    First Instance of 5 December 2000 in so far as it finds: