Case C-404/00: Action brought on 7 November 2000 by the Commission of the European Communities against the Kingdom of Spain
Date: 2001-01-27
Institutions: Court of Justice
Subjects: European Commission, Spain, State aid, action for failure to fulfil an obligation, infringement of EU law, shipbuilding

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).