Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT - LIMITS - QUESTIONS SUBMITTED IN THE COURSE OF A FRIENDLY SUIT BEFORE A NATIONAL COURT - INADMISSIBILITY

( EEC TREATY , ART . 177 )

Summary

THE DUTY OF THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY IS TO SUPPLY ALL COURTS IN THE COMMUNITY WITH THE INFORMATION ON THE INTERPRETATION OF COMMUNITY LAW WHICH IS NECESSARY TO ENABLE THEM TO SETTLE GENUINE DISPUTES WHICH ARE BROUGHT BEFORE THEM .

ON THE OTHER HAND THE COURT DOES NOT HAVE JURISDICTION - OTHERWISE THE WHOLE SYSTEM OF LEGAL REMEDIES AVAILABLE TO PRIVATE INDIVIDUALS TO ENABLE THEM TO PROTECT THEMSELVES AGAINST TAX PROVISIONS WHICH ARE CONTRARY TO THE TREATY WOULD BE JEOPARDIZED - TO GIVE RULINGS ON QUESTIONS ASKED WITHIN THE FRAMEWORK OF PROCEEDINGS WHEREBY THE PARTIES TO THE MAIN ACTION ARE CONCERNED TO OBTAIN A RULING THAT THE TAX SYSTEM OF A MEMBER STATE IS INVALID BY THE EXPEDIENT OF PROCEEDINGS BEFORE A COURT OF ANOTHER MEMBER STATE BETWEEN TWO PRIVATE INDIVIDUALS WHO ARE IN AGREEMENT AS TO THE RESULT TO BE ATTAINED AND WHO HAVE INSERTED A CLAUSE IN THEIR CONTRACT IN ORDER TO INDUCE THAT COURT TO GIVE A RULING ON THE POINT . THE ARTIFICIAL NATURE OF THIS EXPEDIENT IS UNDERLINED BY THE FACT THAT THE PARTIES DID NOT AVAIL THEMSELVES OF THE REMEDIES OPEN UNDER THE NATIONAL LAW OF THE FIRST MEMBER STATE AGAINST THE TAX IN QUESTION .

Parties

IN CASE 104/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA ( DISTRICT COURT ), BRA , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PASQUALE FOGLIA , SAN VITTORIA D ' ALBA ,

AND

MARIELLA NOVELLO , MAGLIANO ALFIERI ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 92 AND 95 OF THE EEC TREATY

Grounds

1 BY AN ORDER OF 6 JUNE 1979 WHICH WAS RECEIVED AT THE COURT ON 29 JUNE 1979 THE PRETURA DIE BRA REFERRED TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY FIVE QUESTIONS ON THE INTERPRETATION OF ARTICLES 92 , 95 AND 177 OF THE TREATY .

2 THE PROCEEDINGS BEFORE THE PRETURA DI BRA CONCERN THE COSTS INCURRED BY THE PLAINTIFF , MR FOGLIA A WINE-DEALER HAVING HIS PLACE OF BUSINESS AT SANTA VITTORIA D ' ALBA , IN THE PROVINCE OF CUNEO , PIEDMONT , ITALY IN THE DISPATCH TO MENTON , FRANCE OF SOME CASES OF ITALIAN LIQUEUR WINES WHICH HE SOLD TO THE DEFENDANT , MRS NOVELLO .

3 THE FILE ON THE CASE SHOWS THAT THE CONTRACT OF SALE BETWEEN FOGLIA AND NOVELLO STIPULATED THAT NOVELLO SHOULD NOT BE LIABLE FOR ANY DUTIES WHICH WERE CLAIMED BY THE ITALIAN OR FRENCH AUTHORITIES CONTRARY TO THE PROVISIONS ON THE FREE MOVEMENT OF GOODS BETWEEN THE TWO COUNTRIES OR WHICH WERE AT LEAST NOT DUE . FOGLIA ADOPTED A SIMILAR CLAUSE IN HIS CONTRACT WITH THE DANZAS UNDERTAKING TO WHICH HE ENTRUSTED THE TRANSPORT OF THE CASES OF LIQUEUR WINE TO MENTON ; THAT CLAUSE PROVIDED THAT FOGLIA SCHOULD NOT BE LIABLE FOR SUCH UNLAWFUL CHARGES OR CHARGES WHICH WERE NOT DUE .

4 THE ORDER MAKING THE REFERENCE FINDS THAT THE SUBJECT-MATTER OF THE DISPUTE IS RESTRICTED EXCLUSIVELY TO THE SUM PAID AS A CONSUMPTION TAX WHEN THE LIQUEUR WINES WERE IMPORTED INTO FRENCH TERRITORY . THE FILE AND THE ORAL ARGUMENT BEFORE THE COURT OF JUSTICE HAVE ESTABLISHED THAT THAT TAX WAS PAID BY DANZAS TO THE FRENCH AUTHORITIES , WITHOUT PROTEST OR COMPLAINT ; THAT THE BILL FOR TRANSPORT WHICH