CELEX: C2002/261/09
Language: en
Date: 2002-10-26 00:00:00
Title: Case C-298/02: Action brought on 21 August 2002 by the Italian Republic against the Commission of the European Communities

26.10.2002             EN                   Official Journal of the European Communities                                     C 261/5
3.    Are the administrative and control procedures for the            Is the amount of aid also to be reduced under the second
      reduction in excise duty which is possible under                 indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
      Article 8(2)(f) of Directive 92/81/EEC governed by               where the special premium for male bovine animals applied
      Article 8(8) of Directive 92/81/EEC without the appli-           for when this provision of Community law was in force cannot
      cation of a marker or by Article 1(1) of Directive 95/60/        for legal reasons be granted to the farmer but where in the
      EC ( 2)?                                                         words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
                                                                       the farmer submitted factually correct information or can
                                                                       show otherwise that he was not at fault?
4.    If the third question should be answered to the effect that
      the Member States which exercise the power under
      Article 8(2)(f) of Directive 92/81/EEC are obliged, in
      an instance comparable to the present case, to grant             (1 ) OJ L 391, 31.12.1992, p. 36.
                                                                       (2 ) OJ L 327, 12.12.2001, p. 11.
      reductions in duty also in the form of a refund of excise
      duty, is a reduction in excise duty for agricultural works
      contrary to the freedom to provide services if the
      reduction is linked to a marking procedure under
      Article 1(1) of Directive 95/60/EC that is not applied in
      this context by other Member States, which on the
      contrary impose excise-duty penalties in the case of
      markings for which no provision is made under their
      legal systems?
                                                                       Action brought on 21 August 2002 by the Italian Republic
5.    If the answer to the fourth question should be in the               against the Commission of the European Communities
      affirmative, does the breach of the freedom to provide
      services mean that liability to pay duty is expunged, or
                                                                                               (Case C-298/02)
      would the claimant, in order to achieve exemption from
      duty, be obliged to ask for unmarked mineral oil and
      apply for a refund of excise duty in the Member State in                                 (2002/C 261/09)
      which it obtains marked gas oil at a reduced rate of duty?
( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
                                                                       Communities on 21 August 2002 by the Commission of the
                                                                       European Communities, represented by Umberto Leanza,
                                                                       acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
                                                                       Stato.
                                                                       The applicant claims that the Court should:
Reference for a preliminary ruling by the Niedersächsi-                —     annul Commission decision No 2281 (1) of 26 June
sches Oberverwaltungsgericht by order of that Court of                       2002 in so far as it makes a financial correction of
1 August 2002 in the administrative-law case of Mrs Gisela                   EUR 12 253 816 in respect of account headings B1-
        Gerken against Amt für Agrarstruktur Verden                          1512-001 and B1-1512-004 so far as concerns Italy.
                         (Case C-295/02)
                                                                       Pleas in law and main arguments
                         (2002/C 261/08)
                                                                       Aid for peaches and pears intended for the production of fruit
                                                                       salad — financial correction
Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-              According to the Commission, during the 1995-96, 1996-
ive Court) of 1st August 2002, received at the Court Registry          97 and 1997-98 marketing years, aid was granted for a final
on 19 August 2002, for a preliminary ruling in the administrat-        product which did not conform to the definitions contained in
ive-law case of Mrs Gisela Gerken against Amt für Agrar-               Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
struktur (Office for Agriculture) Verden on the following              two regulations provided for the payment of aid for whole or
question:                                                              sliced peaches and pears provided that they had undergone
 ---pagebreak--- C 261/6                 EN                      Official Journal of the European Communities                                   26.10.2002
heat treatment or had been packaged in airtight containers.                Reference for a preliminary ruling by the Commissione
The Commission claims that the peaches and pears intended                  Tributaria di Primo Grado di Trento, Sezione No 6 by
for the production of fruit salad had not undergone adequate               order of that Court of 6 June 2002 in the cases pending
heat treatment (pasteurisation or sterilisation) and had been              between Petrolvilla & Bortolotti Spa (previously S.C.D.
stored in open containers, irrespective of the fact that those             Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa,
products had been stored for only a few days before being                  NTB Spa (previously Nuova Tessilbrenta Spa), Hotel
included in fruit salads. The infringement of the regulations              Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel
was in respect of the classification of those products as                  Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
‘intermediate products for the production of fruit salad’. Such            Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
a product was not approved for aid until 1997-1998. The                    di Campiglio Spa against Agenzia delle Entrate (previously
Commission’s position is not valid. Payment of the aid to the                   Direzione delle Entrate) per la Provincia di Trento
processing industries was effected pursuant to Regulation (EC)
No 504/97, which defines peaches in syrup and/or in natural                                         (Case C-306/02)
fruit juice as whole peaches or pieces of peaches, without peel,
having undergone a heat treatment, packed in hermetically
sealed containers with a covering liquid of sugar syrup or                                          (2002/C 261/10)
natural fruit juice. The regulation does not specify the type of
container, require that heat treatment should be applied, nor
lay down the intended use. The Italian Government claims that
                                                                           Reference has been made to the Court of Justice of the
the financial correction applied to 100 % of the products
                                                                           European Communities by order of the Commissione Tributa-
subsequently intended for the production of fruit salad con-               ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
tained in 200 kilogram containers is unlawful and should be
                                                                           Instance, Trento, Sixth Chamber) of 6 June 2002, received at
annulled.
                                                                           the Court Registry on 27 August 2002, for a preliminary
                                                                           ruling in the cases pending between Petrolvilla & Bortolotti
                                                                           Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002
                                                                           Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta
                                                                           Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni
                                                                           Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
                                                                           Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
Inadequate checks on stocks                                                di Campiglio Spa against Agenzia delle Entrate (previously
                                                                           Direzione delle Entrate) per la Provincia di Trento on the
                                                                           following question:
The Commission may claim that checks were inadequate only                  ‘Does the annual assessment to tax at the rate of 0.75 % per
if it should be found that the objectives laid down in the                 annum of a company’s net assets pursuant to Decree-Law
regulation relating to the determination of the methods for                No 324 of 30 September 1992 in so far as it relates solely to
applying the production aid scheme for such processed                      that part of the net assets consisting exclusively of the
products containing fruit and vegetables had not been attained.            company’s capital as disclosed annually in the balance sheet,
In the present case, no evidence to that effect has even                   constitute a tax having equivalent economic effect to capital
been proffered. It follows that the complaint is general,                  duty already levied at the maximum rate of 1 %, thus rendering
unsubstantiated and, therefore, unlawful. Moreover, it should              it incompatible with Community law and, in particular,
be observed that the EAGGF has never given any indication as               Council Directive 69/335/EEC of 17 July 1969 ( 1)?’
to what method to apply for inspecting stocks, nor is such a
method mentioned in the regulations governing the sector. It
                                                                           (1 ) OJ L 249, 3.10.1969, p. 25.
follows that the Commission cannot claim that a prescribed
accounting and verification method was infringed. Accord-
ingly, the financial correction of 10 % by way of a penalty for
the alleged inadequate implementation of checks is unlawful.
                                                                           Action brought on 5 September 2002 by the Kingdom
( 1) OJ 2002 L 170, p. 77. Commission Decision excluding from              of Sweden against the Commission of the European
     Community financing certain expenditure incurred by the Member                                  Communities
     States under the Guarantee Section of the European Agricultural
     Guidance and Guarantee Fund (EAGGF).
                                                                                                    (Case C-312/02)
( 2) OJ L 144, 8.6.1991, p. 31.
( 3) OJ 1997 L 78, p. 14.
                                                                                                    (2002/C 261/11)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of Justice of the European