CELEX: C1999/188/41
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-143/99: Reference for a preliminary ruling from the Verfassungsgerichtshof, Austria, by order of that court of 10 March 1999 in the cases of Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer Zementwerke GmbH v Finanzlandesdirektion für Kärnten

C 188/18             EN                     Official Journal of the European Communities                                        3.7.1999
either of the Member States concerned, against the taxable             The applicant claims that the Court should:
income of that company for the purposes of assessment to
corporation tax, whereas, if the permanent establishment were
located in the same Member State as the company, the business          (a) Declare that:
losses in question could certainly be set off against the taxable
income of that company?                                                    — by maintaining, in breach of Article 59 of the EC
                                                                                Treaty, a general prohibition whereby lawyers estab-
                                                                                lished in other Member States and practising in Italy in
                                                                                the exercise of the freedom to provide services do not
                                                                                have available to them the infrastructure needed by
                                                                                them to provide their services;
                                                                           — by making enrolment as a lawyer on an Italian register
Reference for a preliminary ruling from the Verfassungs-                        conditional upon the possession of Italian citizenship,
gerichtshof, Austria, by order of that court of 10 March                        the possession of qualifications acquired only in Italy
1999 in the cases of Adria-Wien Pipeline GmbH and                               and maintenance of a residence in an Italian judicial
Wietersdorfer & Peggauer Zementwerke GmbH v Fin-                                district;
               anzlandesdirektion für Kärnten
                                                                           — by applying in a discriminatory manner against lawyers
                       (Case C-143/99)                                          from other Member States the ‘offsetting measures’
                                                                                (aptitude test) provided for in Article 4 of Council
                       (1999/C 188/41)                                          Directive 89/48/EEC of 21 December 1988; (1)
Reference has been made to the Court of Justice of the                     — by incompletely transposing Directive 89/48, notwith-
European Communities by an order of the Verfassungsgericht-                     standing the absence of implementing rules laying
shof (Constitutional Court), Austria, of 10 March 1999, which                   down arrangements for the aptitude test for lawyers
was received at the Court Registry on 21 April 1999, for a                      from other Member States,
preliminary ruling in the cases of Adria-Wien Pipeline GmbH
and Wietersdorfer & Peggauer Zementwerke GmbH v Fin-
anzlandesdirektion für Kärnten on the following questions:             the Italian Republic has failed to fulfil its obligations under
                                                                       Articles 52 and 59 of the EC Treaty and of Direc-
1. Are legislative measures of a Member State which provide            tive 89/48/EEC;
    for partial reimbursement of energy duties on natural gas
    and electrical energy, but grant that reimbursement only           (b) Order the italian Republic to pay the costs.
    to undertakings whose activity is shown to consist primar-
    ily in the production of tangible assets, to be regarded as
    State aid within the meaning of Article 92 of the EC
    Treaty?                                                            Contentions and principal arguments adduced in support
2. If the answer to Question 1 is affirmative: Is such a
    legislative measure to be regarded as State aid under
    Article 92 of the EC Treaty even if it is granted to all           (a) A lawyer established in another Member State who prac-
    undertakings, regardless of whether their activity is shown            tises law in the exercise of his freedom to provide
    to consist primarily in the production of tangible assets?             services must have an opportunity of access in Italy to
                                                                           an infrastructure enabling him to provide the services
                                                                           requested by his clients. The prohibition in Article 2 of
                                                                           Law No 31/1982, by reason of its absolute and general
                                                                           nature, is therefore incompatible with the principle of the
                                                                           freedom to provide services as laid down and defined in
                                                                           Articles 59 and 60 of the Treaty and as interpreted by the
                                                                           Court of Justice, in particular in its judgment in Gebhard (2).
Action brought on 21 April 1999 by the Commission of
 the European Communities against the Italian Republic                 (b) The Commission considers that the continuing existence
                                                                           in the Italian legislation governing the professions of a
                       (Case C-145/99)                                     provision like Article 17.1.7, which imposes as a precon-
                                                                           dition for enrolment on the lawyers’ professional register
                                                                           the requirement of residence within the district of the
                       (1999/C 188/42)                                     Court in the area of the local Bar Association, despite the
                                                                           recommendation from the National Bar Association the
An action against the Italian Republic was brought before the              local Bar Associations in its Opinion of 29 April 1994 that
Court of Justice on 21 April 1999 by the Commission of the                 that provision be disapplied, is precisely the opposite of
European Communities, represented by Enrico Traversa, Legal                the precise, clear and transparent situations which the
Adviser, and Bernard Mongin, of its legal Service, acting as               Court requires the Member States to provide in order to
Agents, with an address for service in Luxembourg at the office            enable lawyers to determine the rights conferred on them
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                     by Article 52 of the Treaty and to make use of them.