CELEX: C2004/007/33
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-451/03: Reference for a preliminary ruling by the Corte d'Appello di Milano — Sezione Prima Civile by order of that Court of 15 October 2003 in the case of Servizi Ausiliari Dottori Commercialisti s.r.l. against Notaio Giuseppe Calafiori; intervener: The Public Prosecutor, in the person of the Attorney General at the Court of Appeal, Milan

C 7/20                 EN                          Official Journal of the European Union                                              10.1.2004
      which carries out the operations listed in Annex II A or B                 out the operations listed in Annex II A or B of the
      or recovers or disposes of it himself, the Italian Republic                directive. It has therefore also failed to fulfil its obligations
      has failed to fulfil its obligations under Article 4 and                   under Article 8 of that directive.
      Article 8 of Directive 75/442/EEC (1), as amended by
      Directive 91/156/EEC (2).
                                                                           (1) OJ 1975 L 194, p. 39.
                                                                           (2) OJ 1991 L 78, p. 32.
—     order the Italian Republic to pay the costs.
Pleas in law and main arguments
                                                                           Reference for a preliminary ruling by the Corte d’Appello
—     As regards the site of the former Enichem industrial plant,          di Milano — Sezione Prima Civile by order of that Court
      in view of the information provided by the Italian                   of 15 October 2003 in the case of Servizi Ausiliari Dottori
      authorities and the subsequent prolonged silence maintai-            Commercialisti s.r.l. against Notaio Giuseppe Calafiori;
      ned by them, it must be considered that the removal                  intervener: The Public Prosecutor, in the person of the
      operations of the waste deposited on Island 5 were not                     Attorney General at the Court of Appeal, Milan
      completed as planned by December 2002; that Enichem
      has not submitted, by December 2002, a project for the
      decontamination of the waste deposited on Islands 12,                                          (Case C-451/03)
      14 and 17 and that it is therefore lying in the same place,
      even though it is beyond doubt that it needs to be
      removed; that regarding the waste on Island 16 there is
      at present only an outline plan still a long way from being                                     (2004/C 7/33)
      implemented.
—     As for the Pariti I and Conte di Troia dumps, the technical
      preliminary investigations conducted by the Ministry of              Reference has been made to the Court of Justice of the
      the Environment concerning the plan for the identifi-                European Communities by order of the Corte d’Appello di
      cation of the sites in question has not been completed for           Milano — Sezione Prima Civile (Court of Appeal, Milan —
      October 2002 as planned, and therefore the situation                 Civil Section I) of 15 October 2003, received at the Court
      has remained completely unchanged since the reasoned                 Registry on 27 October 2003, for a preliminary ruling in the
      opinion was delivered.                                               case of Servizi Ausiliari Dottori Commercialisti s.r.l. against
                                                                           Notaio Giuseppe Calafiori; intervener: The Public Prosecutor,
                                                                           in the person of the Attorney General at the Court of Appeal,
                                                                           Milan on the following questions:
—     In the light of the foregoing, notwithstanding that the
      Conte di Troia dump does not constitute an immediate
      risk to the environment, the fact remains that the Italian           1.    Must Articles 4, 10, 82, 86 and 98 of the EC Treaty be
      Republic has not brought into force any measures to                        interpreted as precluding national rules such as those laid
      ensure that the waste lying in the Pariti I dump since                     down in Legislative Decree No 241 of 9 July 1997, as
      1989 and Enichem’s Manfredonia site since 1993 is                          amended by Legislative Decree No 490 of 28 December
      recovered and disposed of without using processes or                       1998, read together with the consolidated law on income
      methods which could harm the environment. It has                           tax (Decree of the President of the Republic No 917 of
      therefore failed to fulfil its obligations under Article 4 of              22 December 1986) and Law No 413 of 30 December
      the directive.                                                             1991, which exclusively reserves the right to provide
                                                                                 certain types of tax advice to a single category of
                                                                                 operators, namely the Centri di Assistenza Fiscale (or
                                                                                 CAFs), and denies other economic operators in the sector
—     The Italian Republic has failed to bring into force the                    who are nevertheless professionally qualified to provide
      necessary measures to ensure that the holder of the waste                  tax and accounting advice (doctors, commercial account-
      on Enichem’s Manfredonia site and in the Pariti I and                      ants, lawyers and work consultants) the opportunity of
      Conte di Troia dumps has it handled by a public or                         providing, on the same terms and conditions, the type of
      private waste collector or by an undertaking which carries                 advice reserved to the CAFs?
 ---pagebreak--- 10.1.2004              EN                         Official Journal of the European Union                                            C 7/21
2.    Must Articles 43, 48 and 49 of the EC Treaty be                          common system of value added tax: uniform basis of
      interpreted as precluding national rules such as those laid              assessment, in particular Articles 2, 4, and 9, the Thir-
      down in Legislative Decree No 241 of 9 July 1997, as                     teenth Council Directive (86/560/EEC) (2) of 17 Novem-
      amended by Legislative Decree No 490 of 28 December                      ber 1986 on the harmonisation of the laws of the
      1998, read together with the consolidated law on income                  Member States relating to turnover taxes — arrangements
      tax (Decree of the President of the Republic No 917 of                   for the refund of value added tax to taxable persons
      22 December 1986) and Law No 413 of 30 December                          not established in Community territory, in particular
      1991, which exclusively reserves the right to provide                    Articles 1 and 2, and the general principles of Community
      certain types of tax advice to a single category of                      law:
      operators, namely the Centri di Assistenza Fiscale (or
      CAFs), and denies other economic operators in the sector
      who are nevertheless professionally qualified to provide
      tax and accounting advice (doctors, commercial account-                  1.   How is the expression ‘fixed establishment’ in
      ants, lawyers and work consultants) the opportunity of                        Article 9 of the Sixth Directive to be interpreted?
      providing, on the same terms and conditions, the type of
      advice reserved to the CAFs?
                                                                               2.   What are the factors to be considered in determining
3.    Must Article 87 of the EC Treaty be interpreted as                            whether the supply of slot gaming services is from
      meaning that a measure such as that arising from the                          the business establishment of a company such as Cl
      rules laid down in Legislative Decree No 241 of 9 July                        or from any fixed establishments that a company
      1997, and in particular Article 38 thereof, which provides                    such as Cl might possess?
      for payment to be made to CAFs from State funds in
      respect of the activities referred to in Articles 34(4) and
      37(2) of that legislative decree, constitute State aid?
                                                                               3.   In particular:
                                                                                    a)   Where the business of a company (‘A’) is
                                                                                         structured in circumstances such as those of the
                                                                                         present case so that a connected company (‘B’),
                                                                                         whose business establishment lies outside the
                                                                                         territory of the Community, supplies slot gam-
Reference for a preliminary ruling by the High Court of                                  ing services and the sole purpose of the struc-
Justice (England & Wales), Chancery Division, by order                                   ture is to eliminate A’s liability to pay VAT in
of that court dated 17 October 2003, in the case of 1) RAL                               the State in which it is established:
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
                            and Excise                                                   (i)   can the slot gaming services be regarded
                                                                                               as supplied from a fixed establishment in
                                                                                               that Member State; and, if so,
                         (Case C-452/03)
                          (2004/C 7/34)                                                  (ii) are the slot gaming services to be deemed
                                                                                               to be supplied from the fixed establish-
                                                                                               ment or are they deemed to be supplied
                                                                                               from the place where B has established its
                                                                                               business?
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003,                        b)   Where the business of a company (‘A’) is
for a preliminary ruling in the case of 1) RAL (Channel Islands)                         structured so that, for the purposes of the place
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and                            of supply rules, a connected company (‘B’), in
Commissioners of Customs and Excise on the following                                     circumstances such as those of the present case,
questions:                                                                               purports to supply slot gaming services from a
                                                                                         business establishment outside the territory of
                                                                                         the Community and has no fixed establishment,
(1) In the circumstances of the present case and
                                                                                         from which those services are provided, in the
                                                                                         Member State in which A is established and the
(2) having regard to the Sixth Council Directive (77/388/                                sole purpose of the structure is to eliminate A’s
      EEC) (1) of 17 May 1977 on the harmonisation of the                                liability to pay VAT in that State on those
      laws of the Member States relating to turnover taxes —                             services: