CELEX: C1995/208/14
Language: en
Date: 1995-08-12 00:00:00
Title: Reference for a preliminary ruling from the Pretura Circondariale di Vicenza by order of that court of 22 April 1995 in criminal proceedings pending before that court against Luciano Arcaro (Case C-168/95)

No C 208/6             EN                     Official Journal of the European Communities                                    12 . 8 . 95
Appeal brought on 30 May 1995 by the Commission of the                   'S -Hertogenbosch        ( Regional     Court    of    Appeal,
European Communities against the judgment delivered on                   's-Hertogenbosch ), of 18 May 1995 , which was received at
28 March 1995 by the Third Chamber of the Court of First                 the Court Registry on 31 May 1995 , for a preliminary ruling
Instance of the European Communities in Case T-12/94                     in the case of M. J. M. Linthorst, K. G. P. Pouwels and J.
between Frederic Daffix and the Commission of the                        Scheres c.s . v. Inspecteur der Belastingdienst/
                    European Communities                                 Ondernemingen te Roermond ( Head of the Undertakings
                       ( Case C-166/95 P)                                Unit of the Revenue Office, Roermond ) on the following
                                                                         question:
                           ( 95/C 208/ 12 )
                                                                         should Article 9 of the Sixth Directive be interpreted as
An appeal against the judgment delivered on 28 March 1 995               meaning that the place where a veterinary surgeon supplies
by the Third Chamber of the Court of First Instance of the               his services as such should be deemed to be the place where
European Communities in Case T-12/94 between Frederic                    he has established his business or has a fixed establishment
Daffix and the Commission of the European Communities                    from which the services are supplied or, in the absence of
was brought before the Court of Justice of the European                   such a place of business or fixed establishment, the place
Communities on 30 May 1995 by the Commission of the                      where he has his permanent address or usually resides, or
European Communities, represented by Dimitrios                            should that Article be interpreted as meaning that the place
Gouloussis, of its Legal Service , acting as Agent, assisted by          where a veterinary surgeon supplies his services as such is
Benoit Cambier, of the Brussels Bar, with an address for                  located elsewhere, namely at the place where those services
service in Luxembourg at the office of Georgios Kremlis,                  are physically carried out or at the place where the customer
Wagner Centre, Kirchberg.                                                 has established his business or has a fixed establishment to
                                                                          which the service is supplied or, in the absence of such a
The appellant claims that the Court should :                              place, the place where he has his permanent address or
                                                                          usually resides ?
— set aside the judgment given on 28 March 1995 by the
     Third Chamber of the Court of First Instance of the
     European Communities in Case T-12/94 ('),
 — grant the form of order sought by the Commission
     before the Court of First Instance and , as a consequence,
     reject the claims of Frederic Daffix,
                                                                          Reference for a preliminary ruling from the Pretura
 — make an appropriate order as to costs .                                Circondariale di Vicenza by order of that court of 22 April
                                                                           1995 in criminal proceedings pending before that court
                                                                                              against Luciano Arcaro
 Pleas in law and main arguments adduced in support:
                                                                                                  ( Case C-168/95 )
 — inadmissibility of the plea in law upheld by the Court of                                        ( 95/C 208/14 )
     First Instance : the Court of First Instance was wrong in
     considering that, in the present case, the plea alleging
     that the statement of reasons was inadequate could be                 Reference has been made to the Court of Justice of the
     regarded as involving a question of public policy and be              European Communities by an order of the Pretura
     held to be admissible even though it was out of time,                 Circondariale ( District Magistrate's Court), Vicenza, of
                                                                           22 April 1995 , which was received at the Court Registry on
 — the plea in law upheld by the Court of First Instance is                30 May 1995 , for a preliminary ruling in the criminal
     unfounded .                                                           proceedings pending before that court against Luciano
                                                                           Arcaro on the following questions :
 (') OJ No C 119 , 13 . 5 . 1995 , p . 11 .
                                                                           1 . Does point 8 (') of the present order for reference put
                                                                               forward a correct interpretation of the Community
                                                                               Directives 76/464/EEC ( 2 ) and 83/513/EEC (*) which
                                                                               Legislative Decree No 133/1992 aims to implement ?
 Reference for a preliminary ruling from the Gerechtshof,                  2 . If question 1 is answered in the affirmative, may, in the
 's-Hertogenbosch by judgment of that court of 18 May                          light of a correct interpretation of Community law,
 1995 in the case of M. J. M. Linthorst, K. G. P. Pouwels and                  direct effect be given to provisions of Community law —
 J. Scheres c.s. v. Inspecteur der Belastingdienst/                            while at the same time conflicting provisions of national
                 Ondernemingen te Roermond                                     law are disapplied — even though the position of the
                                                                               individual may thereby be impaired ?
                          ( Case C-167/95 )
                             ( 95/C 208/ 13 )
                                                                           3 . If question 2 is answered in the negative, what other
                                                                               steps may be taken, in the light of a correct
 Reference has been made to the Court of Justice of the                        interpretation of Community law, in order to secure the
 European Communities by a judgment of the Gerechthsof,                        repeal under the national legal system of provisions
 ---pagebreak---  12 . 8 . 95                        EN                      Official Journal of the European Communities                                  No C 208/7
         which conflict with those of Community law in cases                           Coordination, and by Gloria Calvo Diaz, Abogado del
         where , if direct effect were given to the latter, the                        Estado, acting as Agents, with an address for service in
         position of the individual would be impaired ?                                Luxembourg at the Spanish Embassy, 4—6 Boulevard E.
                                                                                       Servais .
 ( l ) ' 8 . In the court's opinion, there is reason to doubt whether the
              provisions mentioned at point 7 ( 1 ) comply with the                    The applicant claims that the Court should :
              Community Directives :
              ( a ) by virtue of the rules complained of, the system
                     introduced by Legislative Decree No 1 33/ 1 992 ( express ,       — uphold the application and annul the contested decision,
                     prior and conditional authorization for a fixed term )                and
                     does not apply to the majority of existing plants;
              ( b ) all the Community Directives which Legislative Decree
                     No 133/1992 purports to implement ( and in respect of             — order the defendant institution to pay the costs .
                     which the time limit for implementation has long since
                     elapsed ) appear instead to require — clearly and
                     indisputably — express, prior and conditional                     Pleas in law and main arguments adduced in support:
                     authorization for a fixed term in respect of all discharges
                     falling within their purview. In that connection ,
                     consideration should be given to the following                    — Infringement of the Treaty or of any rule of law relating
                     provisions by way of example :                                       to its application : infringement of Article 92 ( 3 ) ( a ) of the
                     ( bl ) Article 1 ( 2 ) ( d ) of Directive 76/464/EEC , which         EC Treaty: the fact that an aid cannot be considered
                            defines the concept of 'discharge ' without drawing           automatically to be compatible as regional aid because it
                            any distinction between new and existing                      is ad hoc and does not form part of a programme of
                            discharges ; Article 3 of that Directive, which               regional aid does not preclude its being classified as
                            provides that 'all discharges . . . which are liable to       compatible regional aid . This case concerns aid granted
                            contain ' one of the substances covered by the                by the Spanish public authorities to an undertaking
                            Directive ( and consequently by Legislative Decree
                            No 133/1992 ) are subject to express , prior and              which intends to locate in a Spanish region classified as a
                            conditional authorization for a fixed term;                   less-favoured area . It is aid for basic investment whose
                     ( b2 ) Article 3 of Directive 83/51 3/EEC , concerning               overall intensity is well below the limit laid down in the
                            cadmium discharges, which provides that all                   Commission's Decision of 28 May 1987 regarding the
                            discharges containing cadmium are subject to                  general regional aid scheme in Spain for the province of
                            express, prior and conditional authorization for a            Teruel ('). Although there was no general regional aid
                            fixed term, with no distinction being drawn                   scheme for the Autonomous Community of Aragon duly
                            between existing discharges and new discharges                authorized by the Commission, the aid granted to Piezas
                            ( the latter being distinguished only for the separate        y Rodajes SA ( PYRSA ) observed the conditions laid
                            purpose referred to in Article 4 ( 1 )).'
(*) '7. It is the court's view that the following provisions of                           down in Decree 80/1988 of the Diputacion General de
              Legislative Decree No 133/1992 merit consideration :                        Aragon ( Government of the Autonomous Community
             — Article 7(1 ) with respect only to the words 'containing                   of Aragon ) on economic aid to small and medium-sized
                    the dangerous substances for which emission thresholds                enterprises in the Autonomous Community of Aragon
                    are laid down in Annex B ',                                           which the Commission adopted on 29 January 1 992 ( 2 ).
             — Article 7 ( 7 ).                                                           Therefore to draw the automatic conclusion that it is
                    The provisions concerned are precisely those which, as                incompatible with the Treaty would entail an
                    explained above at point 5 , confine the current                      irreconcilable contradiction . On the contrary, the aid
                    applicability of Legislative Decree No 133/1992 to a                  should be considered to meet all the conditions in order
                    very small proportion of the existing plants .'
( 2 ) OJ No L 129 , 18 . 5 . 1976 , p. 23 .
                                                                                          to be considered compatible, particularly since the
(-') OJ No L 291 , 24 . 10 . 1983 , p . 1 .                                               provisions underlying it met the criteria which enabled it
                                                                                          to be authorized subsequently as a general regional aid
                                                                                          scheme .
                                                                                      — Error in the assessment of facts : the contested decision
                                                                                          relies on mere 'hypotheses ' extrapolated from
                                                                                          information which not only is unrepresentative but also
                                                                                          refers to years subsequent to those which were taken
                                                                                          into account when granting the aid ( 1990 et seq., instead
Action brought on 1 June 1995 by Kingdom of Spain against                                 of 1988 and 1989 ), even though the Commission itself
            the Commission of the European Communities                                    pointed out the strong increase in demand within the
                                     ( Case C-169/95 )                                    Community in the sector concerned in the years which
                                       ( 95/C 208/ 15 )                                   were relevant to the granting of aid .
                                                                                      — In the alternative, the Kingdom of Spain considers that
An action against the Commission of the European                                          there are exceptional circumstances which could justify
Communities was brought before the Court of Justice of the                                the recipient undertaking's objection to repaying the aid .
European Communities on 1 June 1995 by the Kingdom of                                     The recipient undertaking acted on the basis that it
Spain, represented by Alberto Jose Navarro Gonzalez,                                      considered the aid to be compatible regional aid to be
Director General for Community Legal and Institutional                                    notified a posteriori to the Commission, in accordance