CELEX: C2002/031/07
Language: en
Date: 2002-02-02 00:00:00
Title: Case C-437/01: Action brought on 12 November 2001 by the Commission of the European Communities against the Italian Republic

C 31/4                 EN                   Official Journal of the European Communities                                       2.2.2002
Action brought on 12 November 2001 by the Com-                         exempted from tax should result in zero tax, Italian excise duty
mission of the European Communities against the Italian                is at a high rate of LIT 1 260 000 per 1 000 kg of lubricating
                             Republic                                  oil. This is clearly contrary to Article 3(2) of Directive 92/12
                                                                       in conjunction with Article 8(1)(a) of Directive 92/81.
                         (Case C-437/01)
                                                                       (1) OJ L 76, 23.3.1992, p. 1.
                                                                       (2) OJ L 316, 31.10.1992, p. 12.
                          (2002/C 31/07)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 Novem-
ber 2001 by the Commission of the European Communities,                Reference for a preliminary ruling by the Unabhängiger
represented by Enrico Traversa and Kilian Gross, acting as             Verwaltungssenat im Land Niederösterreich, Aussenstelle
Agents.                                                                Mistelbach, by order of that court of 6 November 2001 in
                                                                       the case of Libor Cipra and Vlastimil Kvasnicka against
                                                                                   Bezirkshauptmannschaft Mistelbach.
The applicant claims that the Court should:                                                     (Case C-439/01)
—     declare that, by maintaining in force a tax on lubricating                                 (2002/C 31/08)
      oils the Italian Republic has breached its obligations
      under Article 3(2) of Council Directive 92/12/EEC (1) of
      25 February 1992 on the general arrangements for
      products subject to excise duty and Article 8(1)(a) of
      Council Directive 92/81/EEC (2) of 19 October 1992 on            Reference has been made to the Court of Justice of the
      the harmonisation of the structures of excise duties on          European Communities by order of the Unabhängiger Verwal-
      mineral oils;                                                    tungssenat im Land Niederösterreich, Aussenstelle Mistelbach,
                                                                       (Independent Administrative Chamber in the Land of Lower
                                                                       Austria, Mistelbach Branch) of 6 November 2001, received at
—     order the Italian Republic to pay the costs.                     the Court Registry on 13 November 2001, for a preliminary
                                                                       ruling in the case of Libor Cipra and Vlastimil Kvasnicka
                                                                       against Bezirkshauptmannschaft Mistelbach, on the following
                                                                       questions:
Pleas in law and main arguments
                                                                       1.    Do drivers falling within the scope of Council Regulation
                                                                             No 3820/85 of 20 December 1985 on the harmonisation
                                                                             of certain social legislation relating to road transport (1)
                                                                             have to satisfy the requirements set out in Article 8(1)
The Commission submits that allowing Italy to impose a                       and (2) of that regulation cumulatively where there are
national tax on lubricating oils which it is bound to exempt                 two drivers or is Article 8(2) a special rule that prevails
from harmonised excise duty under Article 8(1)(a) of Directive               over Article 8(1)?
92/81 would deprive that article of any practical effect.
                                                                       2.    Where there are two drivers falling within the scope of
                                                                             Council Regulation No 3820/85 of 20 December 1985
                                                                             on the harmonisation of certain social legislation relating
For the purposes of the application of Article 3(2) of Directive             to road transport, is Article 8(1) of that regulation, or
92/12 exemptions are covered either by the rules on determin-                possibly Article 8(1) and (2), inapplicable because of
ing the tax base or by the rules concerning the arrangements                 incompatibility with superior Community law?
for the calculation of harmonised excise duty. It follows
that the Italian tax on lubricating oils is incompatible with
Article 3(2) of that directive since a tax of that sort is not
consistent with the general scheme of rules relating to excise         (1) OJ L 370, p. 1.
duty on mineral oils as far as calculation of the tax and
determination of the tax base are concerned. Whereas the
application of harmonised excise duty to a taxable subject