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21.6.

2003 EN Official Journal of the European Union C 146/23

Pleas in law and main arguments Reference for a preliminary ruling by the Giudice di Pace
of Genoa-Voltri by order of that Court of 10 March 2003
in the case of Viacom Outdoor S.r.l. against Société
GIOTTO Immobilier S.a.r.l.
The Appellants submit that the Court of First Instance erred in
law in so far as it held that, as a matter of principle, a decision
to commence proceedings cannot be considered to be a
decision which is open to challenge. Apart from the judgment
of the Court of Justice of the European Communities in case (Case C-134/03)
60/81, IMB v. Commission, which establishes admissibility
where there are ‘exceptional circumstances’, the case-law
clearly demonstrates that admissibility of new classes or types
of application is determined on a case by case basis. (2003/C 146/38)

The Court of First Instance misinterpreted the case-law when


it found that no legal effects ensued from the loss of the
possibility of obtaining a preliminary ruling from the Court of
Justice of the European Communities as to the Commission’s
competence to commence proceedings in a third state in an
Reference has been made to the Court of Justice of the
attempt to recover allegedly unpaid customs duties and VAT.
European Communities by order of the Giudice di Pace
In concluding that commencing proceedings in a third country,
(Magistrate) of Genoa-Voltri of 10 March 2003, received at the
rather than in the Community, did not have legal effects, the
Court Registry on 25 March 2003, for a preliminary ruling in
Court of First Instance also misinterpreted the case-law that
the case of Viacom Outdoor S.r.l. against Société GIOTTO
provides that where a definitive choice has been made for one
Immobilier S.a.r.l. on the following questions:
procedure over another, the decision embodying that choice
has legal effects for the purpose of Article 230.

1. Is the entrusting to a public undertaking (municipalities)


of the management of a tax and duties such as those
The Court of First Instance also failed to recognise that by the described above, on a market which constitutes a substan-
contested decisions the Commission took a definitive position tial part of the common market and on which the public
as to its competence as a matter of EC law, which constitutes undertaking holds a dominant position inconsistent with:
legal effects within the meaning of the established case-law.

a) the application of Article 86 EC in conjunction with


The Appellants also submit that the Court of First Instance Article 82 EC;
was incorrect to proceed on the basis that the District Court
could remedy the lack of a preliminary reference mechanism
in the United States by applying Community law itself, that by
declaring the application inadmissible, the Court of First b) the application of Article 86 EC in conjunction with
Instance violated their right to effective judicial protection and Article 49 EC.
that it misapplied and misinterpreted Community case-law on
the contestability of manifestly illegal measures.
2. Is the payment to that public undertaking of the income
from the tax and charges in question inconsistent with:
Finally, it is submitted that, in concluding that any disputes as
to the Commission’s competence to commence proceedings
in the United States could be determined by the US District a) the application of Article 86 EC in conjunction with
Court, the Court of First Instance adopted a solution that was Article 82 EC;
contrary to Article 292 and the system of the Treaties.

b) the application of Articles 87 EC and 88 EC, as


( 1) OJ C 79, 10.3.2001, p. 23. unlawful State aid (not notified) and incompatible
( 2) OJ C 79, 10.3.2001, p. 24. with the common market.
( 3) OJ C 3, 5.1.2002, p. 39.
( 4) OJ C 3, 5.1.2002, p. 45.