CELEX: C1999/188/16
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-107/99: Action brought on 29 March 1999 by the Italian Republic against the Commission of the European Communities

3.7.1999                EN                       Official Journal of the European Communities                                       C 188/7
Reference for a preliminary ruling by the Diikitiko                         Action brought on 29 March 1999 by the Italian Republic
Protodikio Thessalonikis (First Chamber, Three Judges)                        against the Commission of the European Communities
by judgment of that court of 30 November 1998 in the
case of P. Moskof A.E. against the Idrima Kinonikon
                              Asfalision                                                              (Case C-107/99)
                          (Case C-103/99)
                                                                                                      (1999/C 188/16)
                          (1999/C 188/14)
Reference has been made to the Court of Justice of the                      An action against the Commission of the European Communi-
European Communities by judgment of the Diikitiko Protodi-                  ties was brought before the Court of Justice of the European
kio Thessalonikis (Administrative Court of First Instance,                  Communities on 29 March 1999 by the Italian Republic,
Thessaloniki) (First Chamber, Three Judges) of 30 November                  represented by Umberto Leanza, acting as Agent, assisted by
1998, received at the Court Registry on 22 March 1999, for a                Ivo M. Braguglia, with an address for service in Luxembourg at
preliminary ruling in the case of P. Moskof A.E. against the                the Italian Embassy, 5 Rue Marie Adelaïde.
Idrima Kinonikon Asfalision (Social Security Institution) on
the following question:
Articles 6 and 7 of Legislative Decree 2348/1953 (FEK I,                    The applicant claims that the Court should:
p. 75), as supplemented by Article 2 of Legislative Decree
2519/1953 (FEK I, p. 220) and amended by Articles 9 and                     — annul the contested decision of 16 December 1998 and,
11(4) of Legislative Decree 4104/1960 (FEK I, p. 147), provide                   in so far as necessary, also annul the other contested acts,
for the imposition of a special contribution at the rate of 0.5%
                                                                                 in particular the letter of the Commission dated 19 January
on the value of tobacco exported outside the borders of the
                                                                                 1999, the table thereto attached and the opinion of the
country, paid by the exporters at the time of export and
                                                                                 Management Committee of 22 September 1998;
collected by the customs office through which the export of
tobacco takes place. The proceeds of the special contribution
were stipulated to be revenue of the special account for                    — order the defendant to pay the costs.
tobacco workers, and now of the Pensions Branch of the
Idrima Kinonikon Asfalision (Social Security Institution); they
are made available for the continued payment of pensions
to pensioners of the former Tamio Asfaliseos Kapnergaton                    Pleas in law and main arguments
(Tobacco Workers’ Insurance Fund) which was abolished and
amalgamated with the Idrima Kinonikon Asfalision and for
the payment of pensions to the tobacco workers insured with
the abolished fund, as well as to persons entitled under them               1. The applicant Government has not been made aware of
on their death. Is it possible for that special contribution, with               any text for the contested decision and does not even
those features, to be regarded as a charge having equivalent                     know whether such a text exists other than in the letter of
effect to customs duty under Articles 9, 12 and 16 of the EEC                    the Secretary General of 9 January 1999 and the table
Treaty?                                                                          attached thereto. Accordingly the Italian Government must
                                                                                 express its objection as if the contested decision were set
                                                                                 out in the abovementioned letter.
Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Brindisi, Sezione V by order of                        The applicant claims that the decision as subscribed by the
that court of 14 January 1999 in the case of Oleifici                            Secretary General, rather than by the President or a
Italiani SpA against Direzione Regionale delle Entrate per                       Member of the European Commission is non-existent or is
           la Puglia - Sezione distaccata di Brindisi                            absolutely null and void.
                          (Case C-104/99)
                          (1999/C 188/15)                                        Next, it claims that no statement of reasons was provided
                                                                                 for the decision, contrary to the provisions of Article 190
Reference has been made to the Court of Justice of the                           of the EC Treaty.
European Communities by order of the Commissione Tributar-
ia Provinciale di Brindisi, Sezione V (Provincial Tax Court (Fifth
Chamber), Brindisi) of 14 January, which was received at the                2. The Commission has infringed Article 24 of Regulation
Court Registry on 23 March 1999, for a preliminary ruling in                     No 4253/88, (1) as amended by Article 1 of Regulation
the case of Oleifici Italiani SpA against Direzione Regionale                    No 2082/93, (2) in that it failed to undertake a suitable
delle Entrate per la Puglia — Sezione distaccata di Brindisi of a                examination of the case, the Member State was not
question seeking to ascertain whether the tax on the net assets                  involved and no irregularities were revealed.
of companies under Decree Law No 394 of 30 September
1994 is a charge having equivalent effect to other taxes levied             3. The Commission had no power to decide unilaterally to
on capital contributions and thus contrary to Article 10 of                      reduce or amend the purpose of the funds for Community
Directive 69/335/EEC (1) on indirect taxes on the raising of                     initiative programmes which had been granted.
capital.
(1) OJ, English Special Edition 1969 (II), p. 412.                          4. The partnership principle laid down in Article 4 of
                                                                                 Regulation No 2052/88 (3) wasmanifestly breached by the
                                                                                 contested Commission decision.
 ---pagebreak--- C 188/8                 EN                     Official Journal of the European Communities                                            3.7.1999
5. The solution opted for by the contested decision, based on             Reference for a preliminary ruling by the Tribunal Admin-
     entirely irrelevant criteria, breaches the principles of social      istratif de Pau (First Chamber) by judgment of that
     cohesion and of solidarity among the Member States. It               court of 23 March 1999 in the case of Association
     further breaches the principle of non-discrimination, given          basco-béarnaise des opticiens indépendants against Préfet
     that the reduction of the aid already granted to Italy was           des Pyrénées-Atlantiques in the presence of Mutualité
     greater than that applied to any other Member State.                 ‘Adour Mutualité’ and Mutualité Française Union des
                                                                                                 Pyrénées-Atlantiques
6. The applicant Government further submits that the Com-
     mission’s conduct is contradictory and is ultra vires.                                          (Case C-109/99)
     Moreover, the contested decision allegedly infringes
     Article 2 of Regulation No 1866/90, (4) as amended by
     Article 1 of Regulation No 2745/94. (5)                                                         (1999/C 188/18)
                                                                          Reference has been made to the Court of Justice of the
(1) Council Regulation (EEC) of 19 December 1988 (OJ 1988 L 374,          European Communities by judgment of the Tribunal Adminis-
    p. 1).                                                                tratif de Pau (Administrative Court, Pau) of 23 March 1999,
(2) Council Regulation (EEC) of 20 July 1993 (OJ 1993 L 193, p. 20).      received at the Court Registry on 29 March 1999, for a
(3) Council Regulation (EEC) of 24 June 1993 (OJ 1988 L 185, p. 9).
(4) Council Regulation (EEC) of 2 July 1990 (OJ 1990 L 170, p. 36).
                                                                          preliminary ruling in the case of Association basco-béarnaise
(5) Council Regulation (EEC) of 10 November 1994 (OJ 1994 L 290,          des opticiens indépendants against Préfet des Pyrénées-
    p. 4).                                                                Atlantiques in the presence of Mutualité ‘Adour Mutualité’
                                                                          and Mutualité Française Union des Pyrénées-Atlantiques. The
                                                                          Tribunal Administratif de Pau (First Chamber) requests a ruling
                                                                          from the Court of Justice of the following two questions:
                                                                          (1) Must Article 8(1)(b) of Council Directive 73/239/EEC (1)
                                                                               be interpreted as precluding the provisions of
                                                                               Articles L 123-1 and L 123-2 of the French Mutuality
                                                                               Code, which allow mutual benefit societies whose sole
Reference for a preliminary ruling by the High Court                           business is that of insurance to create between them
of Justice (England & Wales), Queen’s Bench Division,                          mutual benefit bodies which have legal personality and
Divisional Court, by order of that court of 2 September                        legal autonomy and engage in commercial business in the
1998, in the case of Commissioners of Customs and                              optical sector?
        Excise against Cantor Fitzgerald International
                                                                          (2) If the provisions of the directive are incompatible with
                                                                               French law, is the prohibition of commercial business
                          (Case C-108/99)                                      imposed on the mutual benefit body set up by mutual
                                                                               benefit societies whose sole business is that of insurance
                         (1999/C 188/17)                                       general and absolute, or is it open to the competent
                                                                               authorities of the Member State to define the conditions
                                                                               under which and the spheres in which a commercial
Reference has been made to the Court of Justice of the                         business may be pursued?
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division, Divisional
Court of 2 September 1998, which was received at the Court                (1) Of 24 July 1973 on the coordination of laws, regulations and
Registry on 30 March 1999, for a preliminary ruling in the                    administrative provisions relating to the taking-up and pursuit of
case of Commissioners of Customs and Excise against Cantor                    the business of direct insurance other than life insurance (OJ 1973
Fitzgerald International, on the following question:                          L 228 p. 3).
Following the decision of the Court in Case C-63/92 (Lubbock
Fine & Co v Customs and Excise Commissioners); (1) does
Article 13B(b) of the Sixth VAT Directive (2) exempt from VAT
a supply made by a person (‘the person’) who does not have
any interest in immovable property, where the person agrees
to accept an assignment of a lease of that immovable property
                                                                          Reference for a preliminary ruling by the Landgericht
from a lessee, and the lessee pays that person a sum of money
                                                                          Düsseldorf by order of that court of 19 January 1999 in
in return for that person taking the assignment of the lease in
                                                                          the case of Toshiba Europe GmbH against Katun Germany
that immovable property?
                                                                                                          GmbH
(1) ECR 1993 p. I-6665.                                                                              (Case C-112/99)
(2) Directive 77/388/EEC of the Council of 17 May 1977 on the
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform                                       (1999/C 188/19)
    basis of assessment (OJ L 145, 13.06.77, p. 1).
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Landgericht Düsseldorf
                                                                          (Higher Regional Court, Düsseldorf), Fourth Civil Chamber, of