CELEX: C2000/020/18
Language: en
Date: 2000-01-22 00:00:00
Title: Case C-400/99: Action brought on 18 October 1999 by the Italian Republic against Commission of the European Communities

22.1.2000              EN                    Official Journal of the European Communities                                         C 20/9
— The remaining pleas and main arguments are analogous to               Nor can the scheme and purpose of the provisions relied on
      those put forward in Case C-300/99 p (1).                         be used to deny the plaintiff a claim for damages. If there is no
                                                                        decision, the appellant does not know what action, if any, the
                                                                        decision-making body is taking. The decisive factor is that
(1) OJ C 333 of 20.11.1999, p. 12.                                      silence on the part of that body should not be interpreted as a
                                                                        refusal. Silence is a legal nullity, of no commercial-law or
                                                                        constitutional-law significance as such. The purpose of the
                                                                        action for failure to act is merely to provide the appellant with
                                                                        an additional remedy should it be appropriate to achieve an
                                                                        immediate resolution of the dispute. However, the injured
                                                                        party cannot thereby lose the possibility of interrupting the
                                                                        limitation period. It is not within his control whether or not
                                                                        the body being challenged acts speedily.
Appeal brought on 15 October 1999 by Fratelli Murri
S.p.A against the order made on 4 August 1999 by the
First Chamber of the Court of First Instance of the
                                                                        (1) Not yet published in the Official Journal.
European Communities in Case T-106/98 between Fratelli
Murri SpA and Commission of the European Communi-
                               ties
                        (Case C-399/99 P)
                          (2000/C 20/17)
                                                                        Action brought on 18 October 1999 by the Italian
An appeal against the order made on 4 August 1999 by the                Republic against Commission of the European Communi-
First Chamber of the Court of First Instance of the European                                             ties
Communities in Case T-106/98 between Fratelli Murri SpA
and Commission of the European Communities was brought
before the Court of Justice of the European Communities on                                        (Case C-400/99)
15 October 1999 by Fratelli Murri SpA, represented by
Karl-Gustav von Luschka, Chieming, with an address for
service in Luxembourg at the Chambers of Claude Medernach                                          (2000/C 20/18)
8-10, Rue Mathias Hardt.
                                                                        An action against the Commission of the European Communi-
The appellant claims that the Court should:                             ties was brought before the Court of Justice of the European
                                                                        Communities on 18 October 1999 by the Commission of the
I.    Set aside the order of the Court of First Instance in Case        European Communities, represented by Umberto Leanza,
      T-106/98 (1) of 4 August 1999 and order the respondent            assisted by Piero Giorgio Ferri, Avvocato dello Stato, with an
      to pay the appellant USD 7 923 791 plus 10 % interest as          address for service in Luxembourg at the Italian Embassy, 5
      from 25 September 1991;                                           Rue Marie-Adélaïde.
II. Order the respondent to pay the costs.                              The applicant claims that the Court should:
                                                                        — annul the Commission’s letter of 6 August 1999 (1) to the
Pleas in law and main arguments                                              extent necessary;
Infringement of Community law. The appellant complains that             — order the Commission to pay the costs.
the Court of First Instance misinterpreted the scope of the
second paragraph of Article 175 of the Treaty (now, after
amendment, Article 232 EC). The period laid down in the
                                                                        Pleas in law and main arguments
second paragraph of Article 175 is not eliminatory in regard
to claims for compensation for damage. Article 43 of the EC
Statute of the Court of Justice provides that the period laid           The Italian Republic contests the letter of 6 August 1999 on
down in the second paragraph of Article 175 is to apply only            the following grounds:
‘where appropriate’. The same is true of the wording of the
second paragraph of Article 175 itself, which merely permits,
but does not require, an action for failure to act to be brought        — breach of the principle of legal certainty and the rules on
(‘... the action may be brought ...’). The provision does not                transparency with regard to Regulation No 659/99/EC (2);
establish any connection between non-compliance with the
period for bringing an action for failure to act and loss or            — breach of the right to be heard and rights of the defence and
limitation of the right to bring a claim for damages.                        infringement of Article 11(1) of Regulation No 659/99/EC;
 ---pagebreak--- C 20/10                  EN                      Official Journal of the European Communities                                       22.1.2000
— misuse of powers inasmuch as the suspension order                         of Directive 96/54/EC expired on 31 March 1998 and the
     was based on grounds other than those laid down in                     Kingdom of Belgium had not adopted the necessary measures
     Article 88(3) EC;                                                      to comply with the amendments to Annexes I and III to
                                                                            Directive 67/548/EEC.
— declaration that the aid existed and was unlawful vitiated
     by uncertainty and lacks investigation and a statement of
     reasons. No reference to facts.
                                                                            (1) OJ L 248 of 30.9.1996, p. 1.
(1) SG(99)D6463 on the opening of the formal inquiry into aid
    granted by the Italian Republic to undertakings belonging to the
    Tirrenia di Navigazione, in so far as it suspends such aid which it
    declares unlawful.
(2) OJ 1999 L 83, p. 1.
                                                                            Reference for a preliminary ruling by the, Austria, by
                                                                            order of that court of 22 September 1999 in the cases of:
                                                                            1. Metropol Treuhand WirtschaftstreuhandgmbH against
                                                                            Finanzlandesdirektion für Steiermark and 2. Michael
                                                                                Stadler against Finanzlandesdirektion für Vorarlberg
Action brought on 22 October 1999 by the Commission
of the European Communities against the Kingdom of
                               Belgium                                                               (Case C-409/99)
                           (Case C-405/99)                                                            (2000/C 20/20)
                            (2000/C 20/19)                                  Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Verwaltungsgerichts-
                                                                            hof (Administrative Court), Austria of 22 September 1999
An action against the Kingdom of Belgium was brought                        received at the Court Registry on 26 October 1999, for a
before the Court of Justice of the European Communities                     preliminary ruling in the cases of: 1. Metropol Treuhand
on 22 October 1999 by the Commission of the European                        WirtschaftstreuhandgmbH against Finanzlandesdirektion für
Communities, represented by Götz zur Hausen, Legal Adviser,                 Steiermark and 2. Michael Stadler against Finanzlandesdirek-
acting as Agent, with an address for service in Luxembourg at               tion für Vorarlberg on the following question:
the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre, Kirchberg.
                                                                            1. Is subparagraph 2 of Article 17(6) of Sixth Council Direc-
                                                                                 tive 77/388/EEC (1) of 17 May 1977 on the harmonisation
The Commission claims that the Court should:                                     of the laws of the Member States relating to turnover taxes
                                                                                 to be interpreted as precluding a Member State from
— Declare that, by failing to adopt all the laws, regulations                    excluding the right to deduct input tax in respect of certain
     and administrative provisions necessary to comply with                      vehicles after the entry into force of the directive, if before
     Commission Directive 96/54/EC of 30 July 1996 adapting                      its entry into force input tax was deductible in respect of
     to technical progress for the twenty-second time Council                    those vehicles by virtue of the administrative authorities’
     Directive 67/548/EEC on the approximation of the laws,                      actual practice?
     regulations and administrative provisions relating to the
     classification, packaging and labelling of dangerous sub-              2. If the answer to Question 1 is yes, is the first sentence of
     stances, (1) in particular Article 1(1) and (2) and Article 2(1)            Article 17(1) of the Sixth Council Directive 77/388/EEC of
     thereof, the Kingdom of Belgium has failed to fulfil its                    17 May 1977 on the harmonisation of the laws of the
     obligations under that directive;                                           Member States relating to turnover taxes to be interpreted
                                                                                 as meaning that a Member State may, without prior
— Order the Kingdom of Belgium to pay the costs.                                 consultation under Article 29 of the directive, add to the
                                                                                 exclusions from the right to deduct input tax in the manner
                                                                                 described in Question 1 in order to consolidate the budget?
Pleas in law and main arguments
It follows from the binding nature of directives, laid down in              (1) OJ 1977 L 145, p. 1.
the third paragraph of Article 249 and the first paragraph of
Article 10 EC, that Member States to which directives are
addressed are obliged to achieve the results provided for within
the periods prescribed. The period prescribed by Article 2(1)