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C 7/20 EN Official Journal of the European Union 10.1.

2004

which carries out the operations listed in Annex II A or B out the operations listed in Annex II A or B of the
or recovers or disposes of it himself, the Italian Republic directive. It has therefore also failed to fulfil its obligations
has failed to fulfil its obligations under Article 4 and under Article 8 of that directive.
Article 8 of Directive 75/442/EEC (1), as amended by
Directive 91/156/EEC (2).

(1) OJ 1975 L 194, p. 39.


(2) OJ 1991 L 78, p. 32.
— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Reference for a preliminary ruling by the Corte d’Appello


— As regards the site of the former Enichem industrial plant, di Milano — Sezione Prima Civile by order of that Court
in view of the information provided by the Italian of 15 October 2003 in the case of Servizi Ausiliari Dottori
authorities and the subsequent prolonged silence maintai- Commercialisti s.r.l. against Notaio Giuseppe Calafiori;
ned by them, it must be considered that the removal intervener: The Public Prosecutor, in the person of the
operations of the waste deposited on Island 5 were not Attorney General at the Court of Appeal, Milan
completed as planned by December 2002; that Enichem
has not submitted, by December 2002, a project for the
decontamination of the waste deposited on Islands 12, (Case C-451/03)
14 and 17 and that it is therefore lying in the same place,
even though it is beyond doubt that it needs to be
removed; that regarding the waste on Island 16 there is
at present only an outline plan still a long way from being (2004/C 7/33)
implemented.

— As for the Pariti I and Conte di Troia dumps, the technical


preliminary investigations conducted by the Ministry of Reference has been made to the Court of Justice of the
the Environment concerning the plan for the identifi- European Communities by order of the Corte d’Appello di
cation of the sites in question has not been completed for Milano — Sezione Prima Civile (Court of Appeal, Milan —
October 2002 as planned, and therefore the situation Civil Section I) of 15 October 2003, received at the Court
has remained completely unchanged since the reasoned Registry on 27 October 2003, for a preliminary ruling in the
opinion was delivered. case of Servizi Ausiliari Dottori Commercialisti s.r.l. against
Notaio Giuseppe Calafiori; intervener: The Public Prosecutor,
in the person of the Attorney General at the Court of Appeal,
Milan on the following questions:
— In the light of the foregoing, notwithstanding that the
Conte di Troia dump does not constitute an immediate
risk to the environment, the fact remains that the Italian 1. Must Articles 4, 10, 82, 86 and 98 of the EC Treaty be
Republic has not brought into force any measures to interpreted as precluding national rules such as those laid
ensure that the waste lying in the Pariti I dump since down in Legislative Decree No 241 of 9 July 1997, as
1989 and Enichem’s Manfredonia site since 1993 is amended by Legislative Decree No 490 of 28 December
recovered and disposed of without using processes or 1998, read together with the consolidated law on income
methods which could harm the environment. It has tax (Decree of the President of the Republic No 917 of
therefore failed to fulfil its obligations under Article 4 of 22 December 1986) and Law No 413 of 30 December
the directive. 1991, which exclusively reserves the right to provide
certain types of tax advice to a single category of
operators, namely the Centri di Assistenza Fiscale (or
CAFs), and denies other economic operators in the sector
— The Italian Republic has failed to bring into force the who are nevertheless professionally qualified to provide
necessary measures to ensure that the holder of the waste tax and accounting advice (doctors, commercial account-
on Enichem’s Manfredonia site and in the Pariti I and ants, lawyers and work consultants) the opportunity of
Conte di Troia dumps has it handled by a public or providing, on the same terms and conditions, the type of
private waste collector or by an undertaking which carries advice reserved to the CAFs?
10.1.2004 EN Official Journal of the European Union C 7/21

2. Must Articles 43, 48 and 49 of the EC Treaty be common system of value added tax: uniform basis of
interpreted as precluding national rules such as those laid assessment, in particular Articles 2, 4, and 9, the Thir-
down in Legislative Decree No 241 of 9 July 1997, as teenth Council Directive (86/560/EEC) (2) of 17 Novem-
amended by Legislative Decree No 490 of 28 December ber 1986 on the harmonisation of the laws of the
1998, read together with the consolidated law on income Member States relating to turnover taxes — arrangements
tax (Decree of the President of the Republic No 917 of for the refund of value added tax to taxable persons
22 December 1986) and Law No 413 of 30 December not established in Community territory, in particular
1991, which exclusively reserves the right to provide Articles 1 and 2, and the general principles of Community
certain types of tax advice to a single category of law:
operators, namely the Centri di Assistenza Fiscale (or
CAFs), and denies other economic operators in the sector
who are nevertheless professionally qualified to provide
tax and accounting advice (doctors, commercial account- 1. How is the expression ‘fixed establishment’ in
ants, lawyers and work consultants) the opportunity of Article 9 of the Sixth Directive to be interpreted?
providing, on the same terms and conditions, the type of
advice reserved to the CAFs?
2. What are the factors to be considered in determining
3. Must Article 87 of the EC Treaty be interpreted as whether the supply of slot gaming services is from
meaning that a measure such as that arising from the the business establishment of a company such as Cl
rules laid down in Legislative Decree No 241 of 9 July or from any fixed establishments that a company
1997, and in particular Article 38 thereof, which provides such as Cl might possess?
for payment to be made to CAFs from State funds in
respect of the activities referred to in Articles 34(4) and
37(2) of that legislative decree, constitute State aid?
3. In particular:

a) Where the business of a company (‘A’) is


structured in circumstances such as those of the
present case so that a connected company (‘B’),
whose business establishment lies outside the
territory of the Community, supplies slot gam-
Reference for a preliminary ruling by the High Court of ing services and the sole purpose of the struc-
Justice (England & Wales), Chancery Division, by order ture is to eliminate A’s liability to pay VAT in
of that court dated 17 October 2003, in the case of 1) RAL the State in which it is established:
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
and Excise (i) can the slot gaming services be regarded
as supplied from a fixed establishment in
that Member State; and, if so,
(Case C-452/03)

(2004/C 7/34) (ii) are the slot gaming services to be deemed


to be supplied from the fixed establish-
ment or are they deemed to be supplied
from the place where B has established its
business?
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003, b) Where the business of a company (‘A’) is
for a preliminary ruling in the case of 1) RAL (Channel Islands) structured so that, for the purposes of the place
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and of supply rules, a connected company (‘B’), in
Commissioners of Customs and Excise on the following circumstances such as those of the present case,
questions: purports to supply slot gaming services from a
business establishment outside the territory of
the Community and has no fixed establishment,
(1) In the circumstances of the present case and
from which those services are provided, in the
Member State in which A is established and the
(2) having regard to the Sixth Council Directive (77/388/ sole purpose of the structure is to eliminate A’s
EEC) (1) of 17 May 1977 on the harmonisation of the liability to pay VAT in that State on those
laws of the Member States relating to turnover taxes — services: