CELEX: C2000/149/36
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-78/00: Action brought on 2 March 2000 by the Commission of the European Communities against the Italian Republic

27.5.2000              EN                     Official Journal of the European Communities                                      C 149/21
interveners) was brought before the Court of Justice of the              — Breach of the rule of law which makes the incompatibility
European Communities on 2 March 2000 by Acciaierie di                         of ECSC aid dependent on changes in competitive con-
Bolzano SpA, represented by Bruno Nascimbene, with an                         ditions. Absence of reasons regarding validity and compati-
address for service at 36, Rue de Wiltz, Luxembourg.                          bility of the aid;
                                                                         — Breach of the procedural rules governing inter partes
The appellant claims that the Court should:                                   proceedings, to the detriment of the appellant’s interests.
1. Set aside the judgment of the Court of First Instance of
    the European Communities in Case T-158/96 between                    (1) OJ 1996 L 274, p. 30.
    Acciaierie di Bolzano SpA and Commission of the Euro-
    pean Communities (Italian Republic and Falck SpA, inter-
    veners);
2. By so doing, annul Commission Decision 96/617/ECSC of
    17 July 1996 concerning aid granted by the Autonomous
    Province of Bolzano (Italy) to Acciaierie di BoIzano (1).
                                                                         Action brought on 2 March 2000 by the Commission of
In the alternative                                                         the European Communities against the Italian Republic
3. In the event that the Court of Justice should decide that it                                    (Case C-78/00)
    cannot make a decision as to the status of the measure, set
    aside the judgment of the Court of First Instance and refer
    the case to another sitting of the Court of First Instance,                                   (2000/C 149/36)
    indicating the points of law upheld in the present appeal.
                                                                         An action against the Italian Republic was brought before the
4. Make any other decisions it may deem necessary.                       Court of Justice of the European Communities on 2 March
                                                                         2000 by the Commission of the European Communities,
5. Order the Commission to pay the costs, including those                represented by Enrico Traversa, Legal Adviser, acting as Agent,
    incurred at first instance.                                          with an address for service in Luxembourg at the office of
                                                                         Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Pleas and main arguments                                                 The applicant claims that the Court should:
                                                                         a) Declare that, by providing that, in the case of a category of
The contested judgment should be set aside on the following                   taxpayer whose tax situation for 1992 shows a credit
grounds:                                                                      balance, such persons be belatedly issued with Government
                                                                              bonds (titoli di Stato) rather than VAT refunds, the Italian
— Failure to declare that the rights of the defence had                       Republic has failed to fulfil its obligations under Articles
    been infringed by the administrative decision and the                     17 and 18 of Sixth Council Directive 77/388/EEC of
    inconsistency of the decision at issue;                                   17 May 1977 on the harmonisation of the laws of the
                                                                              Member States relating to turnover taxes (1);
— Breach of the prohibition on making decisions containing
                                                                         b) Order the Italian Republic to pay the costs of the proceed-
    sanctions and of the principle of proportionality; absence/
    inadequacy/inconsistency of the reasons stated in that                    ings.
    respect;
— Invalid calculation of the interest and inadequate reasons             Pleas in law and main arguments
    stated in that respect;
                                                                         According to the Commission, the Italian State has failed to
— Breach of rules on limitation periods. Absence and inad-               fulfil its obligation to issue VAT refunds to taxpayers whose
    equacy of reasons in that respect;                                   tax balance for the 1992 tax year shows a credit situation in
                                                                         excess of 100 million as a result of intra-Community trans-
                                                                         actions accounting for more than 10 % of their total taxable
— Breach of the prohibition on applying Community rules                  transactions for that year. The Italian State has thereby
    retroactively. Failure to state reasons in that respect;             deprived that category of person of the normal exercise of the
                                                                         right to a refund, a right which constitutes an ‘essential
— Breach of the legal expectations held by Acciaierie di                 element’ of the entire common system of value added tax and
    Bolzano that it would not have to repay the aid and of the           restriction of which constitutes a serious infringement of
    principles of good faith and cooperation;                            Article 17 of the Sixth Directive.
 ---pagebreak--- C 149/22              EN                    Official Journal of the European Communities                                       27.5.2000
By issuing to those taxpayers five-year or ten-year Government         Reference for a preliminary ruling by the Amtsgericht
bonds, the Italian State has gone far beyond the facultative           Heidelberg by order of that court of 3 March 2000 in the
power conferred on Member States by Article 18(4) of the                      business register case of HSB-Wohnbau GmbH
Sixth Directive, which allows the difference between tax
deducted and tax due to be carried forward, but only to the
following tax period. To carry the excess further forward                                        (Case C-86/00)
entails infringement of the rule clearly laid down by Article
18(4), frustrating that provision and ultimately constituting a                                 (2000/C 149/38)
serious contravention of the basic principle underlying the
common system of value added tax, namely, the right to
immediate exercise of the right to a refund.                           Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Amtsgericht, Heidel-
                                                                       berg (Local Court, Heidelberg), received at the Court Registry
(1) OJ L 145 of 13.6.1977, p. 1.                                       on 7 March 2000, for a preliminary ruling in the business
                                                                       register case of HSB-Wohnbau GmbH on the following
                                                                       questions:
                                                                       A. Does the transfer to Spain of the registered office of a
                                                                           company properly constituted under German law, regis-
                                                                           tered in the German register, and whose sole shareholder
Reference for a preliminary ruling by the Bundesge-                        is a Spanish company, whereby it retains its legal person-
richtshof by order of that court of 10 February 2000 in the                ality, fall within the rights set out in Articles 43 and 48 of
case of Italian Leather SpA against WECO Polstermöbel                      the EC Treaty (formerly Articles 52 and 58 EC)?
                          GmbH & Co.
                                                                       B. Do Articles 43 and 48 of the EC Treaty (previously Articles
                         (Case C-80/00)                                    52 and 58 EC) preclude a national rule prohibiting the
                                                                           transfer to Spain of the registered office of a limited
                        (2000/C 149/37)                                    liability company properly constituted under German
                                                                           law, registered on the German register, and whose sole
                                                                           shareholder is a Spanish company, whereby it retains its
Reference has been made to the Court of Justice of the                     legal personality?
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice, Germany) of 10 February 2000,
received at the Court Registry on 7 March 2000, for a
preliminary ruling in the case of Italian Leather SpA v
WECO Polstermöbel GmbH & Co. on the following questions
concerning the interpretation of the EC Convention on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial matters of 27 September 1968 (‘the Convention’)
(OJ 1972 L 299, p. 32):
                                                                       Reference for a preliminary ruling by the Giudice di Pace
                                                                       di Genova by order of that court of 28 February 2000 in
1. Can judgments be irreconcilable within the meaning of
                                                                                 the case of Roberto Nicoli v Eridiana SpA
    Article 27(3) of the Convention when the only difference
    between them lies in the specific requirements for the
    adoption of a particular type of autonomous provisional                                      (Case C-87/00)
    measure (within the meaning of Article 24 of the Conven-
    tion)?
                                                                                                (2000/C 149/39)
2. May and must the court of the enforcing State which has
    declared a foreign judgment requiring the debtor to desist         Reference has been made to the Court of Justice of the
    from certain activities to be enforceable in accordance with       European Communities by an order of the Giudice di Pace di
    Articles 34(1) and 31(1) of the Convention at the same             Genova (Magistrate’s Court, Genoa) of 28 February 2000,
    time order the measures necessary under the law of the             which was received at the Court Registry on 7 March 2000,
    enforcing State for enforcement of a restraining order?            for a preliminary ruling in the case of Roberto Nicoli v Eridiana
                                                                       SpA, on the following questions:
3. If the answer to Question 2 is in the affirmative, must the
    measures necessary under the law of the enforcing State
    for enforcement of the restraining order be ordered even if        1. Are Regulation (EC) No 1360/98 (1) of 26 June 1998 and
    the judgment to be recognised does not itself include                  Regulation (EC) No 1361/98 (2) 26 June 1998 valid, in
    comparable measures in accordance with the law of the                  view of the fact in that, as a result of belatedly fixing for
    State of judgment, and that law makes no provision at all              the 1998-99 marketing year certain prices applicable to
    for the immediate enforceability of such restraining orders?           the sugar sector, they belatedly determine the intervention
                                                                           prices to be observed on the Italian market, in breach of
                                                                           Article 3(4) and (5) of the basic regulation, Regulation
                                                                           No 1785/81 (3)?