Case C-501/00: Action brought on 29 December 2000 by the Kingdom of Spain against the Commission of the European Communities
Date: 2001-03-10
Institutions: Court of Justice
Subjects: European Commission, Spain, State aid, action for annulment (EU), investment abroad, tax relief

10.3.2001

EN

Official Journal of the European Communities

C 79/13

(a)

(b)

(c)

as regards admissibility: the European Parliament dis-
putes, first of all, the Court of First Instance’s characteris-
ation of the letter of 19 November 1998 of the two
Italian Vice-presidents of the European Parliament as the
‘applicants’ application for membership’. According to
the Court of First Instance, that application for member-
ship was made on behalf of
In the
opinion of the Parliament, that is an apoditic assertion,
unsupported by reasons and having no basis in relevant
provisions of law, or in practice;

the applicants.

again, as regards admissibility: the Parliament also dis-
putes the Court of First Instance’s characterisation of the
College of Quaestors’
letter of 4 February 1999 as a
decision. Rather, it was merely a communication from
the quaestors of the European Parliament for the purposes
of providing information and as a courtesy, and, in any
event, did no more than confirm the existing situation, of
which the Members of Parliament
in question were
already perfectly well aware. Moreover, the informal and
atypical requests the applicants made of the quaestors
place them outside the scope of every applicable rule and
every procedure (such as that provided for in Article
27(2) of the Rules Governing the Payment of Expenses
and Allowances to Members);

lastly, as to the substance: the European Parliament
maintains that the Court of First Instance erred in law
when, reversing the burden of proof and thus committing
a breach of procedure, it found that the Parliament had
‘not proved that
the Members had acquired precise
knowledge of the amending decision more than six
months before they submitted their applications’, and
concluded that ‘the applicants submitted their appli-
cations for membership of
the provisional pension
scheme within the time-limit laid down in the amendment
to Annex III’.

Action brought on 29 December 2000 by the Kingdom of
Spain against the Commission of the European Communi-
ties

(Case C-501/00)

(2001/C 79/24)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 29 December 2000 by the Kingdom of
Spain, represented by Santiago Ortiz Vaamonde, Abogado del
Estado, acting as Agent, with an address for service in
Luxembourg care of the Spanish Embassy, 4-6 Boulevard
Emmanuel Servais.

The applicant claims that the Court should:

— annul the Commission’s decision of 31 October 2000
declaring that the Spanish legislation on the exemption
from corporation tax of expenditure and investments
made abroad constitutes aid which is incompatible with
the common market and prohibited by Article 4(c) of the
ECSC Treaty;

— order the defendant institution to pay the costs.

Pleas in law and main arguments

— Infringement of the procedure laid down by law and
breach of the principles of legal certainty, of the right
to a fair hearing and of the protection of legitimate
expectations: by not adopting the decision within the
time-limit prescribed by Article 6(5) of Decision
2496/96/ECSC, the Commission failed to observe the
procedure laid down by the latter decision, on which the
contested decision is based. Moreover, the contested
decision was adopted contrary to the legitimate expec-
tations of both the Member State to which it was
addressed and the undertakings affected by it. Following
the finalisation of the preparatory documents, the Com-
mission failed to give its definitive decision within the
legal time-limit of three months; it allowed several years
to elapse following the expiry of the deadline for the
adoption of a decision, and may thus reasonably be
considered to have engendered a legitimate expectation
that the measures in issue were not regarded as contrary
to the Treaty in the light of the investigation initiated in
1997.

— Infringement of Article 15 ECSC, on account of the
absence of a statement of reasons concerning the change
of criterion and the effect of the legislation on the
competitiveness of the national products exported.

— Misapplication of Article 4(c) of the ECSC Treaty: non-
existence of any aid or subsidy within the meaning of
that provision: automatically to assimilate the concept of
aid under that provision to aid under Article 87 EC
could give rise to inconsistency, inasmuch as the effects
produced by Article 87 EC are absolute and uncon-
ditional. The ECSC Treaty automatically prohibits aid by
virtue of the very fact of accession to the ECSC; it does
not require any assessment of the effects of such aid on
competition, and does not regulate or deal with existing
grants of aid, since all aid, past and future, is covered by
the same prohibition. For that reason, it may be stated,
on the basis of the case-law of the Court and of the aids
code referred to, that the aid prohibited by Article 4(c) is
direct aid, whether or not specifically intended for ECSC
undertakings. Measures adopted by Member States which
produce indirect effects or repercussions on competition
are subject to different rules, in particular Article 67 of
the ECSC Treaty.

C 79/14

EN

Official Journal of the European Communities

10.3.2001

— (In the event that the Court considers that the concept of
aid as contained in Article 4(c) of the ECSC Treaty is the
same as that in Article 87 EC:)

Non-existence of aid within the meaning of Article 87
EC: it is characteristic of fiscal rules that they should be
aimed at the achievement of general economic policy
objectives. The Spanish fiscal rules in issue are designed
to promote the internationalisation of undertakings. The
deductibility for tax purposes does not, however, depend
on the volume of exports; nor does it have any manifest
effect on pricing. Its effect, like that of the other tax
exemptions proposed, is limited to the actual amount of
the sum assessed to tax. Nor can it simply be said that the
taxable steelworks in Spain will be given an advantage
over those in other countries, since it is necessary to take
into account all factors which affect the actual taxation
of those liable to tax. Even assuming that the measures
applying in certain Member States are not analogous to
those under consideration in the present case, the actual
tax burden on taxable steelworks in Spain may be said to
be lower than that in other Member States.

Appeal brought on 5 January 2001 by the Bundesverband
der Arzneimittel-Importeure e.V. against the judgment
delivered on 26 October 2000 by the Fifth Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Case T-41/96 between
Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Com-
mission of the European Communities, supported by the
Bundesverband der Arzneimittel-Importeure e.V.

(Case C-2/01 P)

(2001/C 79/25)

An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-41/96 (1)
between Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Commission
of the European Communities, supported by the Bundesver-
band der Arzneimittel-Importeure e.V. was brought before the
Court of Justice of the European Communities on 5 January
2001 by the Bundesverband der Arzneimittel-Importeure
e.V., represented by U. Zinsmeister and W.A. Rehmann,
Rechtsanwälte, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the decision of the Court of First Instance of
26 October 2000 in Case T-41/96 and dismiss the claim
by the plaintiff at first instance, or in the alternative refer
the matter back to the Court of First Instance;

— order the plaintiff to pay the costs of the proceedings,
including those incurred by the Bundesverband der
Arzneimittel-Importeure e.V. through its intervention,
but excluding the costs of
the
European Federation of Pharmaceutical Industries’ Associ-
ations, which the latter should bear itself.

the intervention of

Pleas in law and main arguments

— Failure to take full account of the facts as found by the
Commission: The Court held that there was no agreement
because, as it
found, Bayer did not carry out any
monitoring of the final destination of the goods supplied
to the French and Spanish wholesalers. In fact, however,
as is apparent from the documents submitted by the
Commission, such controls did take place, even if in some
cases only by way of spot checks.

— Erroneous assessment of the evidence owing to a disre-
gard of the rules on the burden of proof: The Court of
First Instance wrongly perceived the burden of proof that
an unlawful agreement came into being between Bayer
and the wholesalers concerned in Spain and France as
lying with the Commission. The wholesalers were aware
that Bayer’s intention was to impose quotas on quantities
supplied with the aim of stopping exports. They were
directly confronted with that demand for the imposition
of quotas. They then became involved in the imposition
of quotas on supply quantities. There was no need for
any further proof by the Commission that that was done
for the purpose of hindering exports. On a proper legal
assessment, it follows from the undisputed facts that the
evidence collected by the Commission is already prima
facie sufficient to prove the existence of a corresponding
agreement.

— Misapplication of the concept of an agreement: For an
appraisal of Article 81 EC,
the
wholesalers became involved in the demands of Bayer
that exports be restricted.

is sufficient

that

it

The mere fact that wholesalers initially refused to bend to
Bayer’s policy and made attempts to circumvent it, does
not, under the case-law of the Court of Justice, mean that
there was no concordance of wills. Rather, the latter can
be inferred from the way in which the wholesalers
eventually behaved, which the Court established. The
wholesalers accepted the quota measures.