Case C-398/00: Action brought on 30 October 2000 by Kingdom of Spain against Commission of the European Communities
Date: 2001-01-27
Institutions: Court of Justice
Subjects: EU aid, European Commission, Spain, State aid, action for annulment (EU), control of State aid

27.1.2001

EN

Official Journal of the European Communities

C 28/11

(4) Are penalties such as those provided for under Article 399
of the Codice Postale Italiano (Italian Postal Regulations
set out in Presidential Decree No 156 of 1973) compatible
with Community law, in the light of the principles of
non-discrimination and proportionality?

(1) OJ L 91 of 7.4.1999, p. 10.
(2) OJ L 321 of 30.12.1995, p. 1.

Action brought on 26 October 2000 by the Commission
of the European Communities against the Italian Republic

(Case C-396/00)

(2001/C 28/19)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 26 October
2000 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,
and by Roberto Amorosi, judge on secondment to the Legal
Service, acting as Agents, with an address for service in
Luxembourg at the office of Carlos Go´ mez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.

Pleas in law and main arguments

The Commission claims that even though there existed,
within the area in question, waste-water treatment plants by
31 December 1998, Italy should have adopted measures to
identify the discharges for the purposes of applying Article
5(5) of the directive by adapting, if necessary, the relevant
plants. Italy cannot justify its delay in fulfilling its obligations
under the directive by arguing that the main factors on the
basis of which the present situation was to be characterised,
for the purposes of the applicability of its obligations under
Articles 5(2) and 5(5), have not yet been examined and
assessed, since those obligations had been entrusted to local
bodies (the Regions). As the Court of Justice has consistently
held, Member States cannot rely on provisions of their own
internal legal order in order to justify failure to respect the
obligations and time-limits laid down by a directive.

As regards the exemption under Article 5(4) of the directive, it
is clear that it cannot apply unless it can be shown that the
minimum percentage of reduction of the overall load entering
all urban waste water treatment plants in that area is of a
certain value, which is impossible for the time being because
there is no treatment plant in existence.

By declaring a state of emergency, the Italian authorities have
shown themselves to be seriously willing to resolve the
situation even if the Commission is concerned that, despite
having indicated the expected dates of completion of the
works, by letter of 9 July and of 27 October 1999, in reply to
the letter of formal notice, the latest letter of 6 April 2000
makes no further mention in that respect. In any event, so far
as concerns the present case, nothing of the foregoing changes
the fact that Italy is in breach of Community law.

The applicant claims that the Court should:

(1) OJ 1991 L 135, p. 40.
(2) OJ 1991 L 375, p. 1.

— Declare that, by failing to adopt the provisions necessary
to ensure that, by 31 December 1998, discharges of
urban waste water from Milan collected in a basin
draining into the ‘Po delta’ and ‘northwestern Adriatic
coastal areas’, as defined by the Decree Law No 152 of
the Italian Republic of 11 May 1999 (Provisions on the
prevention of pollution of water and implementation of
Council Directive 91/271/EEC (1) concerning urban
waste-water
Directive
91/676/EEC (2) of 12 December 1991 concerning the
protection of waters against pollution caused by nitrates
from agricultural sources), pursuant
to Article 5 of
concerning urban waste-water treatment, were subject to
more stringent treatment than the secondary treatment
or equivalent described by Article 4 of that directive, the
Italian Republic has failed to fulfil its obligations under
Article 5(2) of the aforementioned directive, as laid down
in Article 5(5);

treatment

Council

and

— Order the Italian Republic to pay the costs.

Action brought on 30 October 2000 by Kingdom of Spain
against Commission of the European Communities

(Case C-398/00)

(2001/C 28/20)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 October 2000 by the Kingdom of Spain,
represented by Santiago Ortiz Vaamonde, Abogado del Estado,
acting as Agent, with an address for service in Luxembourg at
the Spanish Embassy, 4-6 boulevard E. Servais.

C 28/12

EN

Official Journal of the European Communities

27.1.2001

The applicant claims that the Court should:

— annul the decision of the Commission of 22 August 2000
in respect of all the measures it relates to with the
exception of the grant of June 1998;

— order the defendant institution to pay the costs.

Pleas in law and main arguments

— The present action is directed against the decision of the
Commission initiating the formal investigation provided
for under Article 88(2) EC into the injection of capital
and regional aid given to Santana Motor SA, taking
the view that this was new aid, and suspending its
implementation. The Spanish authorities however regard
the measures to which the contested decision relates to
be existing aid. The aid, which was duly notified on
30 July and 17 November 1999 (capital injection and
regional aid respectively), became existent by virtue of
Article 4(6) of Council Regulation No 659/99 (1). By letter
of 28 July 2000 transmitted by fax on the same day, the
Spanish authorities informed the Commission that the
Junta de Andalucı´a was about to implement the measures
notified to the Commission. The fact that that communi-
cation was registered by the Commission on 31 July, or
3 days later, does not change the date on which the fax
was received, which is the transmission date.

The contested decision dated 22 August was notified on
23 August 2000, when the 15 working days on which
the Commission relied had expired.

Likewise, a fax of 17 August and a letter of 21 August,
prior to the date of the contested decision, informing the
recipient that the Commission had ‘adopted’ that decision,
cannot be regarded in any way as notification of the
formal decision to initiate the investigation pursuant to
Article 4 of Regulation 659/99.

— (In the alternative) Inadequate statement of reasons

The contested decision was adopted by the Commission
only in order to circumvent the deadline after which they
became ‘existent’, and are not a reflection of a certainty
that the measures are incompatible with the Treaty, nor
that there was a need for more information than was
received.

Action brought on 7 November 2000 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-404/00)

(2001/C 28/21)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 7 November
2000 by the Commission of the European Communities,
represented by Klaus-Dieter Borchardt and Stefan Rating, of its
Legal Service, acting as Agents, with an address for service in
Luxembourg at the office of Carlos Go´ mez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with Com-
mission Decision 2000/131/EC of 26 October 1999 (1)
declaring certain aid granted to the group of publicly
owned shipyards in Spain to have been granted illegally
and, moreover, incompatible with the common market,
Kingdom of Spain has failed to fulfil its obligations under
Article 249 of the EC Treaty and Articles 2 and of that
directive; and

— Order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under Article 249 of the EC Treaty, Decision 2000/131/EC of
26 October 1999 is to be binding in its entirety upon Kingdom
of Spain, the Member State to which it is addressed, by virtue
of the notification served upon it on 2 December 1999.
Although Article 243 EC provides for Court of Justice to
prescribe any necessary interim measures, the Kingdom of
Spain, which had brought an action for annulment under
Article 230 EC against the decision (Case C-36/00), has not to
date submitted any request to that effect. Thus, the decision in
question remains binding in its entirety in respect of the
Kingdom of Spain. The Spanish Government has not complied
with the decision without it being possible to consider such
failure justified by an ‘absolute impossibility’.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ 1999 L 83, p. 1).

(1) On the State aid implemented by Spain in favour of the publicly

owned shipyards (OJ 2000 L 37, p. 22).