CELEX: C2004/007/32
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-447/03: Action brought on 22 October 2003 by the Commission of the European Communities against the Italian Republic

10.1.2004              EN                       Official Journal of the European Union                                           C 7/19
Pleas in law and main arguments                                         event, (c) in the circumstances, the Commission was stopped
                                                                        from denying that the notification was lawful by reason of
                                                                        some formal defect and the Court of First Instance erred in law
                                                                        in failing to hold that that was so.
The Appellant’s application to the Court of First Instance was
dismissed on the basis that aid granted to the Appellant in
1995 was a continuation of aid which had previously been                The Court of First Instance erroneously relied on (a) the
granted to the Appellant in 1992 unlawfully (without prior              reference (‘NN’) used by the Commission in relation to the
notification to the Commission); that the 1995 aid was                  1995 aid and (b) the fact that the Commission did not reject
effectively tainted by the unlawfulness of the earlier aid; and         the letter of 27 March 1995 (which, by circular reasoning, the
that the unlawfulness was not cured by the provision in 1995            Court of First Instance said that it would have done, if it had
of the information about the 1995 agreement The Appellant               understood the letter to be a notification) as showing that the
submits that the Court of First Instance was wrong in law to            1995 aid had not been duly notified to the Commission.
dismiss its application for the following reasons:                      Neither of those facts was capable in law of depriving the letter
                                                                        of 27 March 1995 of its character as a notification of the plan
                                                                        to grant the 1995 aid.
The Court of First Instance misconstrued Article 88(3) EC,
failing to give effect to the principle that the obligation to          (1) OJ C 212, 28.07.2001, p. 26.
inform the Commission of plans to alter aid is a discrete               (2) OJ C 227, 11.08.2001, p. 29.
obligation no less than is the obligation to inform the
Commission of plans to grant (new) aid. Even where aid was
originally granted unlawfully, altered aid granted under an
agreement that replaces the original agreement will be granted
lawfully if the Commission is informed of the plans to grant
the altered aid and takes a favourable decision with regard to
it before the altered aid is granted.
                                                                        Action brought on 22 October 2003 by the Commission
The Court of First Instance erroneously supported its con-              of the European Communities against the Italian Republic
clusion summarised at paragraph 1 above by finding that the
substance of the aid did not differ between the 1992 and 1995
agreements, and that the 1995 aid was therefore tainted by the                                    (Case C-447/03)
unlawfulness of the 1992 aid.
                                                                                                   (2004/C 7/32)
The Court of First Instance failed to recognise that the letter of
27 March 1995 providing information to the Commission
about the 1995 agreement was capable in law of having, and
did have, a two-fold character: it disposed of the 1992                 An action against the Italian Republic was brought before the
agreement as having been replaced and it informed the                   Court of Justice of the European Communities on 22 October
Commission of the finalised plan to grant new aid by way of             2003 by the Commission of the European Communities,
replacement of the 1992 aid; the Court of First Instance erred          represented by Minas Kostantinidis and Roberto Amorosi,
in law in supposing that the first aspect of the letter excluded        acting as Agents.
the second.
                                                                        The applicant claims that the Court should:
The Court of First Instance relied on alleged procedural failings
in the provision of information by way of the letter of                 —     declare that, by failing to bring into force the necessary
27 March 1995. The Court of First Instance erred in so doing                  measures to ensure that waste, stored and deposited in
since: (a) contrary to the Court of First Instance’s judgment,                dumps on Enichem’s former Manfredonia site (province
there is no requirement laid down by Article 88(3), and there                 of Foggia) and in the Pariti I dump (province of Manfre-
was none in law at the time of the notification, that the                     donia) is recovered or disposed of without endangering
relevant information must be supplied by the Member State in                  human health and without using processes or methods
question; (b) the Court of First Instance relied on the fact that             which could harm the environment, and by failing to
the form and content of the notification did not satisfy the                  bring into force the necessary measures to ensure that the
formal criteria laid down by the Commission in communi-                       holder of the waste stored and deposited in dumps on
cations to Member States, overlooking the fact that communi-                  Enichem’s Manfredonia site and the holder of urban waste
cations from the Commission to Member States cannot create                    in the Pariti I and Conte di Troia dumps has it handled by
legal requirements that are binding on individuals; and, in any               a private or public waste collector or by an undertaking
 ---pagebreak--- C 7/20                 EN                          Official Journal of the European Union                                              10.1.2004
      which carries out the operations listed in Annex II A or B                 out the operations listed in Annex II A or B of the
      or recovers or disposes of it himself, the Italian Republic                directive. It has therefore also failed to fulfil its obligations
      has failed to fulfil its obligations under Article 4 and                   under Article 8 of that directive.
      Article 8 of Directive 75/442/EEC (1), as amended by
      Directive 91/156/EEC (2).
                                                                           (1) OJ 1975 L 194, p. 39.
                                                                           (2) OJ 1991 L 78, p. 32.
—     order the Italian Republic to pay the costs.
Pleas in law and main arguments
                                                                           Reference for a preliminary ruling by the Corte d’Appello
—     As regards the site of the former Enichem industrial plant,          di Milano — Sezione Prima Civile by order of that Court
      in view of the information provided by the Italian                   of 15 October 2003 in the case of Servizi Ausiliari Dottori
      authorities and the subsequent prolonged silence maintai-            Commercialisti s.r.l. against Notaio Giuseppe Calafiori;
      ned by them, it must be considered that the removal                  intervener: The Public Prosecutor, in the person of the
      operations of the waste deposited on Island 5 were not                     Attorney General at the Court of Appeal, Milan
      completed as planned by December 2002; that Enichem
      has not submitted, by December 2002, a project for the
      decontamination of the waste deposited on Islands 12,                                          (Case C-451/03)
      14 and 17 and that it is therefore lying in the same place,
      even though it is beyond doubt that it needs to be
      removed; that regarding the waste on Island 16 there is
      at present only an outline plan still a long way from being                                     (2004/C 7/33)
      implemented.
—     As for the Pariti I and Conte di Troia dumps, the technical
      preliminary investigations conducted by the Ministry of              Reference has been made to the Court of Justice of the
      the Environment concerning the plan for the identifi-                European Communities by order of the Corte d’Appello di
      cation of the sites in question has not been completed for           Milano — Sezione Prima Civile (Court of Appeal, Milan —
      October 2002 as planned, and therefore the situation                 Civil Section I) of 15 October 2003, received at the Court
      has remained completely unchanged since the reasoned                 Registry on 27 October 2003, for a preliminary ruling in the
      opinion was delivered.                                               case of Servizi Ausiliari Dottori Commercialisti s.r.l. against
                                                                           Notaio Giuseppe Calafiori; intervener: The Public Prosecutor,
                                                                           in the person of the Attorney General at the Court of Appeal,
                                                                           Milan on the following questions:
—     In the light of the foregoing, notwithstanding that the
      Conte di Troia dump does not constitute an immediate
      risk to the environment, the fact remains that the Italian           1.    Must Articles 4, 10, 82, 86 and 98 of the EC Treaty be
      Republic has not brought into force any measures to                        interpreted as precluding national rules such as those laid
      ensure that the waste lying in the Pariti I dump since                     down in Legislative Decree No 241 of 9 July 1997, as
      1989 and Enichem’s Manfredonia site since 1993 is                          amended by Legislative Decree No 490 of 28 December
      recovered and disposed of without using processes or                       1998, read together with the consolidated law on income
      methods which could harm the environment. It has                           tax (Decree of the President of the Republic No 917 of
      therefore failed to fulfil its obligations under Article 4 of              22 December 1986) and Law No 413 of 30 December
      the directive.                                                             1991, which exclusively reserves the right to provide
                                                                                 certain types of tax advice to a single category of
                                                                                 operators, namely the Centri di Assistenza Fiscale (or
                                                                                 CAFs), and denies other economic operators in the sector
—     The Italian Republic has failed to bring into force the                    who are nevertheless professionally qualified to provide
      necessary measures to ensure that the holder of the waste                  tax and accounting advice (doctors, commercial account-
      on Enichem’s Manfredonia site and in the Pariti I and                      ants, lawyers and work consultants) the opportunity of
      Conte di Troia dumps has it handled by a public or                         providing, on the same terms and conditions, the type of
      private waste collector or by an undertaking which carries                 advice reserved to the CAFs?