CELEX: C2000/176/15
Language: en
Date: 2000-06-24 00:00:00
Title: Case C-134/00: Reference for a preliminary ruling from the Tribunale di Trento (District Court of Trento) — Insolvency Section — by order of that court of 8 February 2000 in the case of Ministry of Finance v Merkur Chemical s.r.l.

24.6.2000             EN                     Official Journal of the European Communities                                           C 176/9
Pleas in law and main arguments                                         — Since that charge is due even where there is no registration
                                                                             to be made in practice and at the same rate regardless of
                                                                             the number of registrations to be made, the basis for its
In accordance with the third paragraph of Article 249 EC (ex                 payment is not the performance of a single operation
Article 189 of the EC Treaty), directives are binding, as to the             (registration of a single instrument) but a series of activities
result to be achieved, upon each Member State to which they                  (involved in keeping the register of companies) intended
are addressed. Under the first paragraph of Article 10 EC (ex                to enable companies to register instruments whose regis-
Article 5 of the EC Treaty), Member States are to take all                   tration is required by the Civil Code following registration
appropriate measures, whether general or particular, to ensure               of the constituent instrument;
fulfilment of the obligations arising out of the Treaty or
resulting from action taken by the institutions of the Com-             — Moreover, whilst, on the one hand, the amount of the
munity.                                                                      charge appears to be determined on a flat-rate basis
                                                                             according to criteria of reasonableness in the light of its
                                                                             low level (between ITL 750 000 and ITL 90 000 according
It is not disputed by the Hellenic Republic that it must adopt               to the type of operation), on the other hand, considering
measures to comply with the abovementioned directives by                     that registry fees are also payable and given the basis for
drawing up the required waste management plans.                              its payment, it is certainly determined with reference to
                                                                             the cost not of a single registration (of which there may be
                                                                             none) but of keeping the register of companies in general.
The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for full implemen-
tation of the directives at issue in Greek law, nor has it notified     (1) OJ, English Special Edition, 1969, (II), p. 412.
such measures to the Commission.                                        (2) [1993] ECR I-1915.
                                                                        Reference for a preliminary ruling by the Fourth Chamber
Reference for a preliminary ruling from the Tribunale di                of the Consiglio di Stato, sitting in its judicial capacity, by
Trento (District Court of Trento) — Insolvency Section                  order of that court of 12 November 1999 in the case of
— by order of that court of 8 February 2000 in the case                 ANAS — Ente Nazionale per le Strade and Lauro Cantieri
       of Ministry of Finance v Merkur Chemical s.r.l.                   Valsesia SpA against Consorzio Cooperative Costruzioni
                        (Case C-134/00)                                                           (Case C-135/00)
                        (2000/C 176/15)                                                           (2000/C 176/16)
Reference has been made to the Court of Justice of the                  Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di                    European Communities by order of the Fourth Chamber of
Trento (District Court of Trento) — Insolvency Section — of             the Consiglio di Stato, sitting in its judicial capacity, of
8 February 2000, which was received at the Court Registry on            12 November 1999, received at the Court Registry on 10 April
10 April 2000, for a preliminary ruling in the case of Ministry         2000, for a preliminary ruling in the case of ANAS — Ente
of Finance v Merkur Chemical s.r.l. on the following question:          Nazionale per le Strade and Lauro Cantieri Valsesia SpA against
                                                                        Consorzio Cooperative Costruzioni on the following questions:
In an action brought by a capital company before the Italian            (1) In calls for tenders for public works contracts, do clauses
courts for reimbursement of the annual administrative charge                 excluding undertakings which have not submitted with
paid from 1985 to 1992 pursuant to laws incompatible with                    their tenders explanations concerning components of the
Article 10 of Council Directive 69/335/EEC (1) (Joined Cases                 price indicated, amounting to at least 75 % of the figure
C-71/91 and C-178/91 Ponente Carni v Ministry of Finance                     specified in the tender conditions, represent an obstacle to
and Cispadana Costruzioni v Ministry of Finance) (2), is the                 the application of Article 30(4) of Directive 93/37 (1)?
provision in Article 11(1) of Law No 448 of 23.12.1998
introducing the flat-rate charge retrospectively (in amounts            (2) Does the establishment of a mechanism for determining
varying between ITL 750 000 and ITL 90 000 according to                      the threshold indicative of irregularity, below which the
the type of company), for the entry in the register of companies,            validity of tenders falls to be verified, on the basis of an ad
pursuant to the Civil Code, of company instruments other                     hoc criterion and an arithmetical mean, automatically so
than the constituent instrument compatible with Article 10 of                that undertakings are unable to ascertain the threshold in
that directive and with the interpretation of it by the Court of             advance, represent an obstacle to the application of Article
Justice (Ponente Carni), given that:                                         30(4) of Directive 93/37?