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Case 104/79, Foglia v. Novello
Transcript of Case 104/79, Foglia v. Novello
MARIELLA NOVELLO PARTIES PRETURA DI BRA February 1979. Contract between Foglia - Mrs Novello:
- contrary to the provisions on the free movement of goods
March 1979. Contract between Foglia - Danzas
April 1979. Bill Danzas - Foglia
June 1979. Pretura di Bra: Foglia sues Novello
FACTS AND ISSUES 1. Taxation French system vs. art. 95 Treaty?
2. If tax against UE Law are improper > undue payment?
3. Unlawfulness > all courts EU > even between private parties? PRELIMINARY RULING -Question asked: french taxation system against article 95?
- Legitimacy of parties: 177 Treaty of Rome DECISION No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.
Member States shall, not later than at the beginning of the second stage, repeal or amend any provisions existing when this Treaty enters into force which conflict with the preceding rules.
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
ARTICLE 177 11. It thus appears that the parties to the main action are concerned to obtain a ruling that the French tax system is invalid for liqueur wines by the expedient of proceedings before an Italian court 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 the Italian court to give a ruling on the point. The artificial nature of this expedient is underlined by the fact that Danzas did ot exercise its rights under French law to institute proceedings over the consumption tax lthough it undoubtedly had an interest in doing so in view of the clause in the contract by which it was also bound and moreover of the fact that Foglia paid without protest that undertaking's bill which included a sum paid in respect of that tax.
What troubles me about this case is that in fact there is no dispute between the only parties to the proceedings before the Pretore, namely Mr Foglia and Mrs Novello, on any question of Community law. Both contend that the French taxes in question were levied in breach of that law. ADVOCATE'S GENERAL OPINION