CELEX: C2004/021/05
Language: en
Date: 2004-01-24 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-185/00: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil its obligations — Directives 92/81/EEC and 92/82/EEC — Rates of excise duties on mineral oils — Fiscal control — Use of gas oil as motor fuel)

C 21/2                    EN                           Official Journal of the European Union                                               24.1.2004
Third Chamber                                                                        membership of the European Communities (Community law for
                                                                                     1990), which is construed and applied by the administrative
—      Mr Schintgen                                                                  authorities and a substantial proportion of the courts, including
                                                                                     the Corte suprema di cassazione (Italy), in such a way that the
—      Ms Colneric                                                                   exercise of the right to repayment of charges levied in breach of
                                                                                     Community rules is made excessively difficult for the taxpayer,
—      Sir Konrad Schiemann                                                          the Italian Republic has failed to fulfil its obligations under the
                                                                                     EC Treaty;
                                                                               2.    Orders the Italian Republic to pay the costs.
                                                                               (1) OJ C 163 of 10.6.2000.
                  JUDGMENT OF THE COURT
                         of 9 December 2003
in Case C-129/00: Commission of the European Communi-
                       ties v Italian Republic (1)                                               JUDGMENT OF THE COURT
(Failure of a Member State to fulfil obligations — Construc-                                             (Sixth Chamber)
tion contrary to Community law of national legislation by
case-law and administrative practice — Conditions for the                                             of 27 November 2003
              recovery of sums paid though not due)
                                                                               in Case C-185/00: Commission of the European Communi-
                             (2004/C 21/04)                                                       ties v Republic of Finland (1)
                      (Language of the case: Italian)                          (Failure of a Member State to fulfil its obligations —
                                                                               Directives 92/81/EEC and 92/82/EEC — Rates of excise
(Provisional translation; the definitive translation will be published         duties on mineral oils — Fiscal control — Use of gas oil as
                     in the European Court Reports)                                                          motor fuel)
                                                                                                           (2004/C 21/05)
In Case C-129/00, Commission of the European Communities
                                                                                                   (Language of the case: Finnish)
(Agent: E. Traversa, assisted by P. Biavati) v Italian Republic
(Agent: I. M. Braguglia): Application for a declaration that, by
maintaining in force Article 29(2) of Law No 428 of 29 Decem-                  (Provisional translation; the definitive translation will be published
ber 1990 entitled ‘Disposizioni per l’adempimento di obblighi                                      in the European Court Reports)
derivanti dall’appartenenza dell’Italia alle Comunità europee
(legge comunitaria per il 1990)’ (Provisions for the fulfilment of
obligations deriving from Italy’s membership of the European                   In Case C-185/00, Commission of the European Communities
Communities (Community law for 1990) (GURI, Ordinary                           (Agents: E. Traversa and I. Koskinen) with an address for
Supplement No 10 of 12 January 1991, p. 5) which, as                           service in Luxembourg, supported by Kingdom of Sweden
construed and applied by the administrative authorities and                    (Agents: I. Simfors and A. Kruse) v Republic of Finland (Agents:
the courts, allows rules of evidence in relation to the passing                T. Pynnä and E. Bygglin) with an address for service in
on to third parties of the amount of charges levied in breach                  Luxembourg: Application for a declaration that, by main-
of Community rules which make exercise of the right to                         taining in force the laws and regulations on the use of gas oil
repayment of such charges virtually impossible or, at least,                   as a motor fuel, as they are applied in practice, the Republic of
excessively difficult for the taxpayer, the Italian Republic has               Finland has failed to fulfil its obligations under Article 8(2) and
failed to fulfil its obligations under the EC Treaty, the Court,               (3) of Council Directive 92/81/EEC of 19 October 1992 on
composed of: V. Skouris, President, P. Jann, C. W. A. Timmer-                  the harmonisation of the structures of excise duties on mineral
mans, C. Gulmann, J. N. Cunha Rodrigues and A. Rosas,                          oils (OJ 1992 L 316, p. 12) and Article 5(1) of Council Directive
(Presidents of Chambers), D. A. O. Edward, A. La Pergola,                      92/82/EEC of 19 October 1992 on the approximation of
J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken, N. Col-                the rates of excise duties on mineral oils (OJ 1992 L 316,
neric and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;                p. 19), the Court (Sixth Chamber), composed of: V. Skouris
L. Hewlett, Principal Administrator, for the Registrarm, has                   (Rapporteur), President, C. Gulmann, J.-P. Puissochet,
given a judgment on 9 December 2003, in which it:                              F. Macken and N. Colneric, Judges; L.A. Geelhoed, Advocate
                                                                               General; H. von Holstein, Deputy Registrar, has given a
1.     Declares that, by failing to amend Article 29(2) of Law                 judgment on 27 November 2003, in which it:
       No 428 of 29 December 1990 entitled ‘Disposizioni per
       l’adempimento di obblighi derivanti dall’appartenenza dell’Italia       1.    Declares that by maintaining in force the laws and regulations
       alle Comunità europee (legge comunitaria per il 1990)’                        on the use of gas oil as a fuel, as they are applied in practice,
       (Provisions for the fulfilment of obligations deriving from Italy’s           the Republic of Finland has failed to fulfil its obligations under
 ---pagebreak--- 24.1.2004               EN                           Official Journal of the European Union                                                    C 21/3
      Article 8(2) and (3) of Council Directive 92/81/EEC of                 C. W. A. Timmermans, A. Rosas, D. A. O. Edward and S. von
      19 October 1992 on the harmonisation of the structures of              Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
      excise duties on mineral oils, and Article 5(1) of Council             H. von Holstein, Deputy Registrar, has given a judgment on
      Directive 92/82/EEC of 19 October 1992 on the approxi-                 27 November 2003, in which it has ruled:
      mation of the rates of excise duties on mineral oils;
2.    Orders the Republic of Finland to pay the costs;
                                                                             1.   A measure by which a Member State allocates to a public
                                                                                  undertaking a significant proportion of charges, such as the
3.    Orders the Kingdom of Sweden to bear its own costs.                         port charges at issue in the main proceedings, must be classified
                                                                                  as State aid within the meaning of Article 92(1) of the EC
                                                                                  Treaty (now, after amendment, Article 87(1) EC), in so far as
(1) OJ C 247 of 26.8.2000.                                                        it affects trade between Member States, if:
                                                                                  —      the allocation of the charges is not linked to clearly defined
                                                                                         public-service duties, and/or
                                                                                  —      the compensation allegedly necessary in order for those
                 JUDGMENT OF THE COURT                                                   duties to be performed has not been calculated on the
                                                                                         basis of parameters established in advance in an objective
                                                                                         and transparent manner, so as to prevent that compen-
                          (Fifth Chamber)                                                sation from conferring an economic advantage which
                                                                                         might favour the recipient undertaking over competing
                                                                                         undertakings.
                      of 27 November 2003
                                                                                  Not only the allocation of a proportion of the charges to a
In Joined Cases C-34/01 to C-38/01 (Reference for a                               public undertaking, but also the collection from users of the
preliminary ruling from the Corte Suprema di Cassa-                               proportion corresponding to the amount so allocated, may
     zione): Enirisorse SpA v Ministero delle Finanze (1)                         constitute State aid incompatible with the common market. If
                                                                                  the aid has not been notified, it is for the national court to take
                                                                                  all measures necessary, under its national law, to prevent both
(Public undertakings — Transfer to public undertakings of                         the allocation of a proportion of the charges to the recipient
a proportion of port charges paid to the State — Competition                      undertakings and the collection of that proportion of the
— Abuse of a dominant position — State aid — Charge                               charges;
having equivalent effect — Internal taxation — Free move-
                           ment of goods)
                                                                                  The fact that the collection and allocation of a proportion of the
                                                                                  charges may be unlawful concerns only that proportion of the
                           (2004/C 21/06)                                         charges paid to the public undertaking in question and does not
                                                                                  affect the charges as a whole.
                    (Language of the case: Italian)
                                                                             2.   Charges, such as the port charges at issue in the main
(Provisional translation; the definitive translation will be published            proceedings, constitute internal taxation within the meaning of
                   in the European Court Reports)                                 Article 95 of the EC Treaty (now, after amendment, Article 90
                                                                                  EC) not falling within the ambit of Article 12 or Article 30 of
                                                                                  the EC Treaty (now, after amendment, Articles 25 EC and 28
                                                                                  EC). In the absence of any unequal treatment discriminating
                                                                                  against goods from other Member States, the measure by virtue
In Joined Cases C-34/01 to C-38/01: Reference to the Court
                                                                                  of which a Member State provides for the collection of those
under Article 234 EC by the Corte Suprema di Cassazione
                                                                                  charges and the allocation of a significant proportion thereof to
(Italy) for a preliminary ruling in the proceedings pending
                                                                                  a public undertaking, when the sum so allocated corresponds to
before that court between Enirisorse SpA and Ministero delle
                                                                                  a service actually provided by that undertaking, does not infringe
Finanze, on the interpretation of Article 12 of the EC Treaty
                                                                                  Article 95.
(now, after amendment, Article 25 EC), Article 13 of the EC
Treaty (repealed by the Treaty of Amsterdam), Article 30 of
the EC Treaty (now, after amendment, Article 28 EC),
Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
86 EC), Article 92 of the EC Treaty (now, after amendment,                   (1) OJ C 79 of 10.3.2001.
Article 87 EC), Article 93 of the EC Treaty (now Article 88 EC)
and Article 95 of the EC Treaty (now, after amendment,
Article 90 EC), the Court (Fifth Chamber), composed of:
P. Jann, acting for the President of the Fifth Chamber,