CELEX: C1995/119/10
Language: en
Date: 1995-05-13 00:00:00
Title: References for preliminary rulings from the Tribunale di Genova, Sezione Prima Civile, by orders of that court of 26 January 1995 and 16 February 1995 in the cases of 1. Olasagasti & Co. Srl, 2. Comarcon SNC, 3. Ghezzi Alimentari Srl, 4. Fredo Srl, and 5. Cateringros v. Amministrazione delle Finanze dello Stato (Cases C-47/95, C-48/95, C-49/95, C-50/95 and C-60/95)

13 . 5 . 95             EN                Official Journal of the European Communities                                   No C 119/5
     exempt transfers of goods used wholly for an activity                 products listed in the Annex to Regulation (EEC)
     which is exempted, or goods which are in any event                    No 3835/90 (2)' also apply to imports from Spain of
     not deductible, the Italian Republic has failed to fulfil             tuna in olive oil ?
     its obligations under Article 13B (c ) of Council
     Directive 77/388/EEC ( J ) of 17 May 1977 ( Sixth VAT           ( b ) May the competent customs authorities, pursuant to
     Directive).                                                           Article 5(1 ) and (2 ) of Regulation (EEC) No 1697/79
                                                                           of 24 July 1979, as supplemented by Regulation (EEC)
Pleas in law and main arguments adduced in support:                        No 1715/90 ( 3 ) of 20 June 1990, and Article 2 of
                                                                           implementing Regulation ( EEC ) No 2164/91 (4 ) of
As regards 'supplies of goods used wholly for an activity                  23 July 1991 , initiate action for the recovery of customs
exempted under this Article . . . when these goods have not                duties which were not collected at the time of
given rise to the right to deduction', Article 10 of                       importation because they were regarded as having been
Presidential Decree No 633 omits to list among                             totally suspended as a result of an erroneous
approximately 30 examples which it gives of 'transactions                  interpretation of the Cpmmunity legislation in force,
exempt from duty' the situation envisaged at the beginning                 but which subsequently proved to be due on the basis of
of Article 13B (c) of the Directive .                                      a different interpretation of the same Community
                                                                           legislation provided by the Commission of the EEC
Âs regards 'supplies . . . of goods on the acquisition or                  after consulting its Legal Service, where the person
production of which, by virtue of Article 17(6 ), value added              liable observed all the provisions laid down by the rules
                                                                           in force as far as his customs declaration was concerned
tax did not become deductible', the corresponding provision
of Presidential Decree No 633/72 (third paragraph of                       and it does not appear that that person was aware that
Article 2 ) provides that transactions involving the goods                 the interpretation initially given to the Community
referred to in Article 19 of that Decree, such as motor                    legislation by the Italian authorities was erroneous ?
vehicles and pleasure craft, 'are not considered to be
transfers of goods'. That specification precludes the                (!)  OJ  No L  324,  26 . 11 . 1991 , p. 11 .
application of VAT to transactions of that kind, and thus            (2 ) OJ  No L  370,  31 . 12. 1990, p. 126 .
likewise fails to implement Article 13B (cj of the Sixth VAT         (3 ) OJ  No L  160 , 26 . 6 . 1990, p . 1 .
Directive correctly.                                                 (4 ) OJ  No L  201 , 24 . 7. 1991 , p . 16 .
(!) OJ No L 145, 13 . 6 . 1977, p. 1 .
                                                                     Appeal brought on 28 February 1995 by Unifruit Hellas
                                                                     EPE against the judgment delivered on 15 December 1994
References for preliminary rulings from the Tribunale di             by the Third Chamber of the Court of First Instance of the
Genova, Sezione Prima Civile, by orders of that court of             European Communities in Case T-489/93 between Unifruit
26 January 1995 and 16 February 1995 in the cases of                 Hellas EPE and the Commission of the European
                                                                                                    Communities
1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.                                           ( Case C-51/95 P
          Amministrazione delle Finanze dello Stato                                                ( 95/C 119/11 )
      (Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 and
                             C-60/95 )                               An appeal against the judgment delivered on 15 December
                           (95/C 119/10 )                             1 994 by the Third Chamber of the Court of First Instance of
                                                                     the European Communities in Case T-489/93 between
Reference has been made to the Court of Justice of the               Unifruit Hellas EPE and the Commission of the European
European Communities by orders of the Tribunale di                   Communities was brought before the Court of Justice of the
Genova, Sezione Prima Civile (District Court, Genoa, First           European Communities on 28 February 1995 by Unifruit
Civil Section) of 26 January 1995 and 16 February 1995 ,             Hellas EPE, established in Athens, represented by Elias
which were received at the Court Registry on 23 February             Souflero, of the Athens Bar, with an address for service in
1995 and 8 March 1 995, for preliminary rulings in the cases         Luxembourg at the Chambers of Aloyse May, 31 Grand
                                                                     Rue .
of 1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.
Amministrazione delle Finanze dello Stato on the following           The appellant claims that the Court should:
questions:
                                                                      1 . déclaré the appeal admissible;
(a ) Does the suspension of the residual customs duties
       applicable to imports from Spain into the Community
       of Ten in accordance with Article 75 ( 1 ) of the Act of      2, set aside the judgment appealed against to the extent to
       Accession of that country which was provided for by                 which it rejected the claim for damages;
       Article 1 ( 1 ) of Regulation (EEC ) No 3416/91 O of
       25 November 1991 as regards 'the agricultural                  3 , award costs to the appellant.