CELEX: C1998/151/10
Language: en
Date: 1998-05-16 00:00:00
Title: Reference for a preliminary ruling by Tribunal de Grande Instance (First Chamber), Lyon, by judgment of that court of 25 February 1998, in the case of SA Gougenheim Imprimerie Publicité v. Directeur des Services Fiscaux du Rhône (Case C-72/98)

C 151/6               EN                 Official Journal of the European Communities                                    16.5.98
    of equal treatment in relation to the second tendering          Reference for a preliminary ruling by Tribunal de Grande
    procedure, and error in law in relation to the evidence         Instance (First Chamber), Lyon, by judgment of that court
    that the principle of equal treatment was infringed at          of 25 February 1998, in the case of SA Gougenheim
    the time of the second tendering procedure,                     Imprimerie PubliciteÂ v. Directeur des Services Fiscaux du
                                                                                                Rhône
Ð infringement of Articles 1 and 6 of Regulation (EEC)                                     (Case C-72/98)
    No 3389/73 (3) and Article 7(2) of Regulation (EEC)
                                                                                            (98/C 151/10)
    No 727/70 (4) concerning the Commission's wide
    discretion and its right not to accept favourable
    tenders made in tendering procedures (contested
    Commission decisions of 7 August and 16 November
                                                                    Reference has been made to the Court of Justice of the
    1990), and incorrect appraisal as to whether the
                                                                    European Communities by an judgment of the First
    contested decisions are measures of economic policy,
                                                                    Chamber of the Tribunal de Grande Instance (Regional
                                                                    Court), Lyon, which was received at the Court Registry on
Ð infringement of the audi alteram partem principle and             16 March 1998, for a preliminary ruling in the case of SA
    of the principle of equality of the parties,                    Gougenheim Imprimerie PubliciteÂ v. Directeur des Services
                                                                    Fiscaux du Rhône, on the following questions:
Ð inappropriate application to the actual events of the
    prohibition of discrimination (principle of equal
                                                                    1. Where a Directive (Council Directive 73/80/EEC (1))
    treatment) and of the increase of the guarantee at the
                                                                        amends an earlier Directive (Council Directive 69/335/
    time of the fourth tendering procedure,
                                                                        EEC (2)) and specifies that the capital duty with which
                                                                        they are concerned is to be 1 % as from 1 January
Ð infringement and incorrect legal assessment of the                    1976, and the domestic law of a Member State
    validity of Commission Regulation (EEC) No 395/                     maintains a higher rate, and where in particular a
    90 (5) regarding the reduction of the time limit                    third Directive (Council Directive 85/303/EEC (3))
    in Article 3 of Commission Regulation (EEC)                         later provides that the Member States are to exempt
    No 3389/73.                                                         from capital duty transactions which were, as at 1 July
                                                                        1984, exempted or taxed at a rate of 0,50 % or less,
                                                                        must it be considered in the absence of a rate
(1) OJ C 55, 20.2.1998, p. 23.
                                                                        applicable under domestic law:
(2) OJ C 268, 14.10.1995, p. 26.
(3) OJ L 345, 15.12.1973, p. 47.
(4) OJ L 94, 28.4.1970, p. 1.
(5) OJ L 42, 16.2.1990, p. 46.                                          Ð either that, as a result of non-transposition into
                                                                            domestic law of the rate fixed by the Community
                                                                            provision and by reason of the principle of non-
                                                                            application of downward direct effect', no legally
                                                                            applicable rate existed,
Reference for a preliminary ruling from the Consiglio di                Ð or that the domestic law of that Member State was
Stato (Council of State) by order of that court of                          only partially inapplicable' having regard to the
20 January 1998, in the case of Questore di Verona (Chief                   Community        Directive   73/80/EEC     and    in
            of Police of Verona) v. Diego Zenatti                           consequence the application of a rate of 1 %
                        (Case C-67/98)                                      should be allowed on the basis of the principle of
                                                                            downward direct effect where there is a clear and
                         (98/C 151/09)                                      precise provision which involves no other
                                                                            condition'?
Reference has been made to the Court of Justice of the
European Communities by an order of the Consiglio di
                                                                    2. If, by virtue of the application of Directive 73/80/EEC,
Stato of 20 January 1998, which was received at the
                                                                        a positive answer were to be given regarding the
Court Registry on 13 March 1998, for a preliminary
                                                                        second alternative set out above, but having regard to
ruling in the case of Questore di Verona v. Diego Zenatti
                                                                        the fact that Directive 85/303/EEC of 10 June 1985
on the following questions:
                                                                        amended Article 7(2) of the latter as from its entry
                                                                        into force on 1 January 1986 by stating that Member
Do the Treaty provisions on the provision of services                   States may either exempt from capital duty all
preclude rules such as the Italian betting legislation in               transactions . . . or charge duty on them at a single
view of the social policy concerns and of the concern to                rate not exceeding 1 %' and to the fact that, by that
prevent fraud that justify it?                                          date, a Member State had not yet transposed the latter
                                                                        directive into its internal law but, on the contrary,
                                                                        retained a rate far higher than the 1 % previously
                                                                        authorised:
 ---pagebreak--- 16.5.98               EN               Official Journal of the European Communities                                 C 151/7
    What must be the rate that it is legally appropriate to       requirements laid down in the Annex and Article 5) and
    adopt, in the absence of any applicable domestic law          on 31 December 1994 (as regards the remainder of the
    and of any choice thus made by the Member State               provisions).
    within the bracket allowed by the directive?
                                                                  (1) OJ L 340, 31.12.1993, p. 15.
                                                                  (2) OJ C 137, 2.5.1998, p. 12.
    In other words, what must be the scope of the
    directive in such circumstances and must it be
    considered that the applicable rate is: 1 %? 0 %? and
    why not 0,25 % or 0,50 %?
(1) OJ L 103, 18.4.1973, p. 15.
(2) OJ L 249, 3.10.1969, p. 25.
(3) OJ L 156, 15.6.1985, p. 23.                                         Removal from the register of Case C-287/97 (1)
                                                                                          (98/C 151/12)
                                                                  By order of 17 September 1997, the President of the Court
                                                                  of Justice of the European Communities ordered the
                                                                  removal from the register of Case C-287/97: (Reference
                                                                  for a preliminary ruling from the Pretura Circondariale di
Action brought on 16 March 1998 by the Commission of              Bassano del Grappa): Claudio Matteazzi v. Caseificio
 the European Communities against the Kingdom of Spain            Sociale S. Rocco Scarl.
                       (Case C-73/98)
                                                                  (1) OJ C 295, 27.9.1997.
                        (98/C 151/11)
An action against Kingdom of Spain was brought before
the Court of Justice of the European Communities on
16 March 1998 by the Commission of the European
Communities, represented by Juan Guerra FernaÂndez and
                                                                        Removal from the register of Case C-160/97 (1)
GeÂrard Berscheid, acting as Agents, with an address for
service in Luxembourg at the office of Carlos Gómez de la                                 (98/C 151/13)
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                  By order of 4 December 1997, the President of the Court
The applicant claims that the Court should:                       of Justice of the European Communities ordered the
                                                                  removal from the register of Case C-160/97: Commission
                                                                  of the European Communities v. Italian Republic.
Ð declare that, by failing to adopt and bring into force,
    or to notify, the laws, regulations or administrative         (1) OJ C 199, 28.6.1997.
    provisions necessary to comply with Council Directive
    85/73/EEC on the financing of health inspections and
    controls of fresh meat and poultrymeat (1) as amended
    by Council Directive 93/118/EEC of 22 December
    1993, the Kingdom of Spain has failed to fulfil its
    obligations under the EC Treaty, and
                                                                        Removal from the register of Case C-173/97 (1)
Ð order the defendant to pay the costs.                                                   (98/C 151/14)
Pleas in law and main arguments adduced in support:               By order of 4 December 1997, the President of the Court
                                                                  of Justice of the European Communities ordered the
                                                                  removal from the register of Case C-173/97: Commission
The pleas in law and main arguments are analogous to              of the European Communities v. Hellenic Republic.
those in Case C-66/98 (2); the period for implemen-
tation expired on 31 December 1993 (as regards the                (1) OJ C 199, 28.6.1997.