CELEX: C1999/071/26
Language: en
Date: 1999-03-13 00:00:00
Title: Action brought on 31 December 1998 by the Italian Republic against the Commission of the European Communities (Case C-482/98)

13.3.1999                 EN                     Official Journal of the European Communities                                    C 71/15
the European Communities on 28 December 1998 by the                              Exchequer and to the social security fund by four
Kingdom of Spain, represented by R. Silva de Lapuerta,                           undertakings, two of which are insolvent and the
Abogado del Estado, acting as Agent, with an address for                         other two of which are not trading, constitutes public
service in Luxembourg at the Spanish Embassy, 4-6                                aid which is incompatible with the common market.
Boulevard Emmanuel Servais.
                                                                            4. O b l i g a t i o n t o r e c o v e r t h e a i d
The applicant claims that the Court should:
                                                                                 As regards that repayment obligation, apart from the
(1) annul the Commission's decision of 14 October 1998
                                                                                 fact that the amount to be repaid is not quantified,
    concerning aid granted by Spain to the undertakings in
                                                                                 interest cannot accrue in relation to undertakings
    the MAGEFESA group and their successor
                                                                                 which are the subject of insolvency proceedings.
    undertakings;
(2) order the defendant institution to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                            Action brought on 31 December 1998 by the Italian
1. I n f r i n g e m e n t o f A r t i c l e 9 2 ( 1 ) o f t h e E C        Republic against the Commission of the European
    Tr e a t y                                                                                          Communities
                                                                                                      (Case C-482/98)
    The Kingdom of Spain considers that the partial                                                    (1999/C 71/26)
    non-payment by the companies INDOSA, CUNOSA,
    MIGSA and GURSA of certain sums due to the social
    security fund and to the Hacienda PuÂblica (Exchequer)                  An action against the Commission of the European
    does not constitute aid incompatible with the common                    Communities was brought before the Court of Justice of
    market, since that non-payment results from the                         the European Communities on 31 December 1998 by the
    application of a general rule of law governing any                      Italian Republic, represented by Professor Umberto
    undertaking which is the subject of insolvency                          Leanza, acting as Agent, assisted by Oscar Fiumara,
    proceedings or which has incurred debts due to the                      Avvocato dello Stato, with an address for service in
    social security authorities or to the Hacienda PuÂblica,                Luxembourg at the Italian Embassy, 5 Rue
    and the undertakings alleged to have been granted the                   Marie-Adelaïde.
    aid have not been treated in a different way.
    Furthermore, this is not a case in which any advantage                  The applicant claims that the Court should:
    has been provided, either directly or indirectly, by
    means of State funds, inasmuch as neither the                           Ð Annul the Commission's decision, referring the matter
    Tesorería General de la Seguridad Social (Social                             back to the Commission for review (1);
    Security General Fund) nor the Agencia Estatal de la
    Administración Tributaría (State Fiscal Administration
    Agency) nor the Diputación Foral de Vizcaya                             Ð Order the Commission to pay the costs.
    (Government of the Province of Biscay) has at any
    time remitted any debts owed to them by those
    undertakings; on the contrary, they have taken all legal                Pleas in law and main arguments adduced in support:
    steps within their powers in order to recover the debts
    due to them.
                                                                            The Commission's decision is erroneous and vitiated on
                                                                            the following grounds:
2. B r e a c h o f t h e p r i n c i p l e o f l e g a l c e r t a i n t y
                                                                            Ð It affirms, in general contrast with point 7.4 of Annex I
    The contested decision is not clear or precise and does                      to Council Directive 80/232/EEC (2) concerning certain
    not enable the Kingdom of Spain to ascertain the                             cosmetic products, that cosmetic products may be
    obligations which that decision imposes on it or,                            produced from impure alcohol; moreover, it does not
    consequently, to exercise its rights of defence and to                       appear from the decision that the Community
    adopt the measures which it considers appropriate; it                        scientific bodies have addressed the question, even
    therefore breaches the principle of legal certainty.                         though it was constantly urged by the Italian
                                                                                 administrative authorities throughout the procedure
3. A b s e n c e o f a s t a t e m e n t o f r e a s o n s                       that they be consulted;
    The Commission has failed to state in the contested                     Ð In contrast to Article 1(1) of Council Directive
    decision the reasons why the non-payment of certain                          76/768/EEC (3), as amended by Council Directive
    unspecified sums to the State and Provincial Public                          93/35/EEC (4), it endorses the argument that cosmetic
 ---pagebreak--- C 71/16                EN                  Official Journal of the European Communities                                  13.3.1999
     products may be used for purposes other than                     Genova (Genoa District Court) of 18 December 1998,
     application to the human body and, consequently, may             which was received at the Court Registry on 4 January
     be prepared specifically for such uses; Article 6(2)             1999, for a preliminary ruling in the case of Kofisa Italia
     requires Member States to take all measures necessary            Srl against Ministero delle Finanze and against Servizio
     to ensure that the labelling and presentation of                 della Riscossione dei Tributi Ð San Paolo Riscossione
     cosmetic products do not suggest that those products             Genova SpA on the following questions:
     possess characteristics Ð and, therefore, applications
     Ð which they do not. Thus, contrary to what is stated
     in the contested decision, if a product is intended for          (a) May the appeal referred to in Article 243(2) of
     the cleansing of objects or places, it cannot be called a             Council Regulation (EEC) No 2913/92 (1) be brought
     cosmetic; it falls instead into some other category of                directly before the judicial authority without referring
     goods, subject to other tax arrangements;                             the matter first to the customs authority?
Ð Since it manifestly does not distinguish between                    (b) Is the power to suspend the contested decision
     evasion, avoidance and abuse Ð defined in                             provided for in Article 244 of Regulation (EEC)
     Article 27(1) and (5) of Council Directive                            No 2913/92 conferred exclusively on the customs
     92/83/EEC (5), but equates all those concepts with                    authority or also on the judicial authority before
     evasion, it does not regard as abuse the attempt to                   which an appeal has been brought?
     benefit, without justification, from more favourable
     tax rules (an instance of which has already occurred in
                                                                      (1) OJ L 302, 19.2.1992, p. 1.
     Italy);
Ð In discarding any limits as to alcoholic content and
     therefore permitting the preparation of products which
     are substantially similar in terms of composition and
     potential applications from alcohol which has been
                                                                      Reference for a preliminary ruling by the Hessisches
     completely denatured' Ð to be subject to rules which
                                                                      Finanzgericht by order of that court of 7 May 1998 in the
     are less stringent than those laid down for such
                                                                         case of Döhler GmbH against Hauptzollamt Darmstadt
     alcohol Ð the decision authorises tax discrimination
     between products which lend themselves equally to                                         (Case C-2/99)
     evasion, and such discrimination has repercussions on
     market conditions and consequently on the                                                (1999/C 71/28)
     competitiveness of like products.
                                                                      Reference has been made to the Court of Justice of the
(1) Commission Decision 98/617/EC of 21 October 1998 (OJ
    L 295, 4.11.1998, p. 43) denying authority to Italy to refuse     European Communities by order of the              Hessisches
    the grant of exemption to certain products exempt from excise     Finanzgericht (Finance Court, Hessen) (Seventh Senate) of
    duty under Council Directive 92/83/EEC on the harmonisation       7 May 1998, received at the Court Registry on 5 January
    of the structures of excise duties on alcohol and alcoholic       1999, for a preliminary ruling in the case of Döhler
    beverages.                                                        GmbH v Hauptzollamt Darmstadt on the following
(2) OJ L 51, 25.2.1980, p. 1.                                         questions:
(3) OJ L 262, 27.9.1976, p. 169.
(4) OJ L 151, 23.6.1993, p. 32.
(5) OJ L 316, 31.10.1992, p. 21.
                                                                      1. Is the second sentence of Article 7(5) of Commission
                                                                           Regulation (EEC) No 2169/86 of 10 July 1986 laying
                                                                           down detailed rules for the control and payment of the
                                                                           production refunds in the cereals and rice sectors (1), in
                                                                           the version as amended by Regulation (EEC)
                                                                           No 165/89, to be interpreted as meaning that the
                                                                           expression the party concerned' also includes the
Reference for a preliminary ruling by the Tribunale di                     purchaser of a product CN 3505 10 50, who has for
Genova by order of that court of 18 December 1998 in                       his part undertaken to the manufacturer and/or
the case of Kofisa Italia Srl against Ministero delle Finanze              supplier of that product to use it exclusively for the
and against Servizio della Riscossione dei Tributi Ð San                   manufacture of products other than those listed in
                 Paolo Riscossione Genova SpA                              Annex I?
                          (Case C-1/99)
                         (1999/C 71/27)                               2. If the answer to Question 1 is in the affirmative:
                                                                           (a) Does the required payment by the purchaser of
Reference has been made to the Court of Justice of the                         105 % of the highest production refund applicable
European Communities by order of the Tribunale di                              to the product in question during the previous