CELEX: C1999/188/42
Language: en
Date: 1999-07-03 00:00:00
Title: Case C-145/99: Action brought on 21 April 1999 by the Commission of the European Communities against the Italian Republic

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.
 ---pagebreak--- 3.7.1999                EN                     Official Journal of the European Communities                                      C 188/19
(c) Article 17 of Professional law No 1576 of 1933 has not                The applicant claims that the Court should:
     undergone the slightest amendment, not even by means of
     a reference to the other two measures having force of
     law which are relevant in this area (Legislative Decree              — Annul Commission Decision 1999/187/EC of 3 February
     No 115/1992 and Law No 149/1994), to make it clear                       1999 on the clearance of the accounts presented by the
     that lawyers from other Member States are not subject to                 Member States in respect of the expenditure for 1995
     the condition of nationality or that of possession of an                 of the Guarantee Section of the European Agricultural
     Italian university degree, or the requirement of having                  Guidance and Guarantee Fund (EAGGF) (notified under
     undertaken legal training in Italy. That lack of care on                 document number C(1999) 209), (1) in so far as, in
     the part of the Italian legislature creates serious legal                determining the total Italian expenditure chargeable to the
     uncertainty for lawyers from other Member States                         Fund, it made certain financial corrections to the detriment
     intending to establish themselves in Italy.                              of Italy.
(d) The Italian State, by requiring lawyers from other Member
     States to have had training comparable to that of an Italian         Pleas in law and main arguments
     graduate in jurisprudence, is abusing the right conferred
     on it by Article 4 of the said Directive 89/48 to make
     recognition of a professional qualification subject to an
     aptitude test. The difficulty of the aptitude test — the latter      A. Public stocks of cereals — Inspections carried out by the
     being far more difficult than the ordinary examination for               UCLAF through an ‘ente assuntore’ — Quantity of wheat
     entitlement to practise as a lawyer — is a manifestation of              in respect of which expenditure was disallowed
     that abusive, and therefore illegal, application of Article 4
     of that directive.
                                                                              As regards the quantity of wheat in respect of which
                                                                              the expenditure was disallowed, the Italian authorities
(e) Despite the fact that Article 9 of Legislative Decree                     challenge in its entirety the sampling procedure for the
     No 115/1992 conferred on the Minister of Justice the                     product for analysis and question whether the alleged
     power to adopt a decree to regulate generally the conduct                quality defects were indeed present from the beginning.
     of the aptitude test, no such decree has yet been issued. It             They also point out that the comparative analysis of the
     follows, first, that Italian law contains no implementing                quantities of durum wheat actually in storage on the date
     provisions, at least as regards lawyers, and, second, that               of each inspection, and the results of the analyses carried
     the transposition of Directive 89/48 is incomplete.                      out — at the same time and on the same samples — by
                                                                              the two laboratories requested to do so disclose that the
                                                                              quantity of wheat unambiguously recognised by both
                                                                              laboratories as falling below the minimum standard
(1) OJ 1989 L 19, of 24.1.1989, p. 16.                                        required for public intervention was less than that alleged
(2) Case C-55/94 [1995] ECR I-4165.
                                                                              by the Commission.
                                                                          B. Consumption aid for olive oil — Failure to revoke approval
                                                                              for the packaging plants in Italy.
                                                                              The Commission had maintained that the date from which
                                                                              withdrawal of recognition should have taken effect was
                                                                              that of each single application contested, rather than that
                                                                              of the report in which the applications themselves were
                                                                              assessed, regarding as unacceptable the aid allocated to the
                                                                              various undertakings immediately following submission of
                                                                              applications (and before the reports).
Action brought on 21 April 1999 by the Italian Republic
  against the Commission of the European Communities
                                                                              The Italian Government argues that, by refusing to take
                                                                              into account the dates of the reports, the Commission in
                                                                              effect refused to acknowledge that before that date — since
                         (Case C-147/99)                                      no withdrawal had been lawfully provided for — all the
                                                                              payments in respect of previous periods had been properly
                                                                              settled and, consequently, must he recognised as chargeable
                         (1999/C 188/43)                                      to the Community budget.
                                                                          C. Ewe/goat premium
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 April 1999 by the Italian Republic,                         The Italian Government contests the correction in question
represented by Professor Umberto Leanza, acting as Agent,                     in so far as it has applied a 25% flat-rate adjustment to the
assisted by Danilo Del Gaizo, Avvocato dello Stato, with an                   Sicily region for the 1993 marketing year and to the
address for service in Luxembourg at the Italian Embassy,                     Sicily and Calabria regions for the 1994 marketing year.
5 Rue Marie-Adelaïde.                                                         Application of that percentage is unlawful in that it was