C-447/99
ECLI:EU:C:2001:130
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- Súdny dvor Európskej únie
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- 61999CC0447
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- eur-lex.europa.eu ↗
COMMISSION V ITALY
OPINION OF ADVOCATE GENERAL ALBER delivered on 6 March 2001 1
1. In its action the Commission objects to freedom to provide services if, as a result of the Italian provisions by which higher taxes the measure in question, a cross-border are imposed for intra-Community flights service costs more than a similar domestic than for domestic flights. service. 4Pursuant to Article 3 of the Min- isterial Decree of 13 August 1998 imple- menting Law No 537 of 24 December 1993, as amended by Law No 662 of 23 December 1996, a tax ('airport tax') of ITL 15 500 per passenger is levied for intra- Community flights, and ITL 7 000 per passenger for domestic flights. 2. Article 3(1) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes 2provides that '... Community air carriers shall be permit- ted by the Member State(s) concerned to exercise traffic rights on routes within the 4. The Italian Republic has not disputed Community.' By adopting this regulation the infringement of Article 3 of Regulation the Community legislature declared that No 2408/92 in conjunction with Article 59 the provisions relating to the freedom to of the EC Treaty (now, after amendment, provide services were applicable to the air Article 49 EC). However, it states that a transport sector. 3 legislative amendment is being prepared that will remove the distinction between intra-Community flights and domestic flights as regards the levying of the tax.
3. According to the case-law of the Court, there is a restriction on the principle of the 5. According to settled case-law, elimina- 1 — Origina! language: German. tion of the infringement of the Treaty after 2 — O J 1992 L 240, p. 8. 3 — C a s e C-361/98 Italy v Commission [2001] ECK 1-385, paragraph 32. Opinion of Advocate General Alber delivered on 6 March 2001 in Case C - 0 / 9 9 Commission v Portugal 4 — Case 205/84 Commission v Germany [1986] ECR 3755, [2001] ECR I-4845, point 31 et seq. paragraph 28.
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OPINION OF MR ALBER — CASE C-447/99
an action has been brought has no effect on parties. 5The Court should therefore find the merits of that action. The subject of the in favour of the Commission. dispute is described in the reasoned opinion of the Commission of 14 December 1998. Even if the failure to fulfil obligations as stated were remedied after the expiry of the time-limit prescribed in the second para- graph of Article 169 of the EC Treaty (now the second paragraph of Article 226 EC), 6. The Commission has asked that Italy be there is still an interest in pursuing the ordered to pay costs. Pursuant to Arti- action in order to establish the basis of cle 69(2) of the Rules of Procedure, the liability which a Member State may incur, unsuccessful party is to be ordered to pay as a result of its default, towards other the costs if the successful party makes an Member States, the Community or private application to that effect.
5 — Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 45, and Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 31.
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COMMISSION V ITALY
Conclusion
7. In view of the foregoing, I propose that the Court should give judgment as follows:
(1) By maintaining in force Article 3 of the Ministerial Decree of 13 August 1998 implementing Law No 537 of 24 December 1993, as amended by Law No 662 of 23 December 1996, which provides for differentiated airport taxes according to whether the flight is domestic or to another Member State, the Italian Republic has failed to fulfil its obligations under the Treaty, in particular Article 59 of the EC Treaty (now, after amendment, Article 49 EC) in conjunction with Article 3 of Council Regulation (EEC) No 2408/92 of 23 July 1992.
(2) The Italian Republic is ordered to pay the costs.
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