CELEX: C2000/285/09
Language: en
Date: 2000-10-07 00:00:00
Title: Case C-302/00: Action brought on 7 August 2000 by the Commission of the European Communities against the French Republic

C 285/4                 EN                   Official Journal of the European Communities                                     7.10.2000
(b) order the Italian Republic to pay the costs.                              T-312/97, T-313/97, T-315/97, T-600/97 to T-607/97,
                                                                              T-1/98, T-3/98 to T-6/98 and T-23/98;
Pleas in law and main arguments                                         2.    alternatively, set aside that judgment in so far as it
                                                                              imposes the obligation to recover the aid granted together
Article 32(d) of Italian Law No 82/1963 provides for the                      with interest thereon;
payment of a tax by passengers disembarking or embarking in
the ports of Genoa, Naples and Trieste where those passengers           3.    order the Commission of the European Communities to
arrive from, or are travelling to, places in another Member                   pay the costs in any event.
State or a third country, whereas no such tax is levied in the
case of carriage between two places located on Italian territory.
                                                                        Pleas in law and main arguments
That manifest difference between tax regimes has a substan-
tially adverse effect on the exercise by the economic operators
concerned of their freedom to provide services, and therefore           The first plea concerns the allegedly erroneous characterisation
constitutes a clear restriction on freedom to provide maritime          of the measures as ‘new’ aid and a lack of reasoning in the
transport passenger services, contrary to Article 1(1) of Regu-         judgment of the Court of First Instance. The aid granted by the
lation No 4055/86.                                                      Friuli-Venezia Giulia Region, as provided for by the Laws of
                                                                        1981 and 1985, cannot be regarded as ‘new’, despite having
                                                                        from a chronological standpoint been granted after the entry
(1) OJ L 378 of 31.12.1986, p. 1.
                                                                        into force of Regulation No 1018/68 (1) which opened up the
                                                                        activity in question to competition, since the international
                                                                        road haulage sector could not yet be regarded as having been
                                                                        fully liberalised. Moreover, that aid did not have any effect on
                                                                        intra-Community trade and was not such as to have any
                                                                        impact on competition; the judgment of the Court of First
                                                                        Instance does not contain sufficient reasoning on those points.
Appeal brought on 3 August 2000 by the Italian Republic
against the judgement delivered on 15 June 2000 by the                  The second plea concerns alleged infringement of the principle
Fourth Chamber (Extended Composition) of the Court of                   of the protection of legitimate expectations and of the principle
First Instance of the European Communities in Joined                    of reasonableness. The effect of the judgment of the Court of
Cases T-298/97, T-312/97, T-313/97, T-315/97, T-600/97                  First Instance requiring Italy to recover the aid granted from
to T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 between               1 July 1990 onwards for international transport operations is
Mauro Alzetta and Others, supported by the Italian                      contrary to the aforesaid principles, in particular because it
Republic, and the Commission of the European Communi-                   was not until November 1995 that the Commission com-
                                  ties                                  menced the procedure contesting that aid. In addition, the
                                                                        operation of the decision will have very grave occupational
                                                                        and social consequences.
                         (Case C-298/00 P)
                          (2000/C 285/08)                               (1) OJ L 175 of 23.7.1968, p. 13.
An appeal against the judgment delivered on 15 June 2000 by
the Fourth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Joined Cases
T-298/97, T-312/97, T-313/97, T-315/97 ,T-600/97 to
T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 between
Mauro Alzetta and Others, supported by the Italian Republic,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 3 August 2000 by the Italian Republic, represented by           Action brought on 7 August 2000 by the Commission of
Prof. Umberto Leanza, acting as Agent, assisted by Giacomo               the European Communities against the French Republic
Aiello, Avvocato dello Stato, with an address for service in
Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde.
                                                                                                (Case C-302/00)
The appellant claims that the Court should:
                                                                                                (2000/C 285/09)
1.    set aside in its entirety the judgment delivered on 15 June
      2000 by the Court of First Instance (Fourth Chamber,              An action against the French Republic was brought before the
      Extended Composition) in Joined Cases T-298/97,                   Court of Justice of the European Communities on 7 August
 ---pagebreak--- 7.10.2000                 EN                   Official Journal of the European Communities                                       C 285/5
2000 by the Commission of the European Communities,                            according to the State, may adversely affect both the
represented by Enrico Traversa, Legal Adviser, and Christophe                  exercise of sound competition on the cigarette market
Giolito, of its Legal Service, acting as Agents, with an address               and the pursuit of a public health policy aimed at
for service in Luxembourg at the office of Carlos Gómez de la                 combatting addiction to tobacco.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
The Commission of the European Communities claims that                    (Different rates of tax for dark-tobacco and
the Court should:                                                         light-tobacco cigarettes)
—     declare that:                                                       —    Infringement of Articles 8 (2) and 16 (5) of Directive
                                                                               95/59/EC:
      by maintaining in force a system imposing a minimum
      reference price for all cigarettes, the French Republic has              Article 575a of the French Code Général des Impôts
      failed to fulfil its obligations under Article 9 (1) of Council          (General Tax Code) provides for the imposition of a
      Directive 95/59/EC of 27 November 1995 on taxes other                    consumption duty fixed, for units of 1 000, at FRF 500 in
      than turnover taxes which affect the consumption of                      1999 and FRF 530 in 2000 as regards light-tobacco
      manufactured tobacco (1);                                                cigarettes and at FRF 400 in 1999 and FRF 470 in 2000
                                                                               as regard dark-tobacco cigarettes. The Commission is
      and that:                                                                pleased to note that the French authorities acknowledge
                                                                               that Community legislation permits only a single mini-
                                                                               mum excise duty to be levied in respect of all categories
      by maintaining in force a system imposing different tax
                                                                               and sorts of cigarettes. However, in the absence of any
      rates on dark-tobacco and light-tobacco cigarettes, to the
                                                                               modification of Article 575a of the French Code Général
      disadvantage of the latter, the French Republic has failed
                                                                               des Impôts, the infringement of Community law subsists.
      to fulfil its obligations under Articles 8 (2) and 16 (5) of
      Directive 95/59/EC, under Article 2 of Council Directive
      92/79/EEC of 19 October 1992 on the approximation of                —    Infringement of Article 90 EC:
      taxes on cigarettes (2) and under the first paragraph of
      Article 90 EC, alternatively under the second paragraph
      of Article 90 EC;                                                        The imposition of different rates of tax on light-tobacco
                                                                               and dark-tobacco cigarettes constitutes a discriminatory
                                                                               fiscal practice protecting national products, inasmuch as
—     order the French Republic to pay the costs.                              99 % of the dark-tobacco cigarettes distributed in France
                                                                               are manufactured in that country.
Pleas in law and main arguments                                                The products concerned are ‘similar’ products within the
                                                                               meaning of the first paragraph of Article 90 EC, having
                                                                               the same fiscal classification (Article 2 (1) of Directive
(Minimum reference price)                                                      95/59/EC applies no distinction in that regard) and the
                                                                               same customs classification. The fact that, according to
—     Infringement of Article 9 (1) of Council Directive                       the French authorities, dark tobaccoes are sold at the
      95/59/EC:                                                                lowest prices, that the market in those products is not
                                                                               attracting any more customers and that consumption of
                                                                               those products is continuing to fall may explain the
      Article 572 of the French Code Général des Impôts
                                                                               reasons for the adoption of the French measures but does
      (General Tax Code) provides that the price per 1 000 units
                                                                               not justify them, since they constitute discriminatory
      of products of a given category sold under the same
                                                                               taxation contrary to the first paragraph of Article 90 EC.
      brand may not be lower, regardless of the style or unit of
      packaging used, than that applied to the best-selling
      product of that brand; this is tantamount to the impo-                   However, even if (quod non) it were accepted that light-
      sition of a minimum reference price. The imposition of                   tobacco and dark-tobacco cigarettes are not similar
      such a minimum reference price precludes any price                       products within the meaning of the first paragraph of
      variation within the same brand of cigarettes reflecting                 Article 90 EC and that a separate market therefore exists
      the number (10, 20, 30, etc.) or length of the cigarettes                for dark-tobacco cigarettes, the latter would clearly find
      concerned (normal length, ‘king size’, ‘super long’). More-              themselves competing with light-tobacco cigarettes.
      over, it restricts the manufacturer’s right to apply different
      prices within one and the same brand according to the
      quality or intrinsic characteristics of the products in
      question, such as cigarettes with or without filter-tips,           (1) OJ 1995 L 291, p. 40.
      medium-strength or mild cigarettes, menthol cigarettes,             (2) OJ 1992 L 316, p. 8.
      etc. The French Government is incorrect in its apparent
      view that Article 9 of the directive permits a Member
      State to intervene in the event of any price reduction
      which is freely accepted by the manufacturer and which,