Case C-183/02 P: Appeal brought on 15 May 2002 against the judgment delivered on 6 March 2002 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-127/99, T-129/99 and T-148/99 (not yet published) between Territorio Histórico de Álava — Diputación Foral de Álava and Others and Commission of the European Communities
Date: 2002-07-27
Institutions: Court of Justice
Subjects: European Commission, State aid, action for annulment (EU), electronics industry, tax law

27.7.2002

EN

Official Journal of the European Communities

C 180/9

Reference for a preliminary ruling by the Verwaltungsge-
richt Braunschweig by order of that Court of 26 February
2002 in the administrative law proceedings brought by
Schaper & Brümmer GmbH & Co KG against Bezirks-
regierung Braunschweig

1. Must point 35 Germany-Austria (e)(i) of Parts A and B of
Annex III to Regulation (EEC) No 1408/71 (1) be inter-
preted as requiring — in addition to entitlement to the
benefit on 1 January 1994 — also the taking up of
residence in Austria?

(Case C-84/02)

(2002/C 180/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Braunschweig (Brunswick Administrative Court) of 26 Febru-
ary 2002, received at the Court Registry on 12 March 2002,
for a preliminary ruling in the administrative law proceedings
brought by Schaper & Brümmer GmbH & Co KG against
Bezirksregierung Braunschweig on the following question:

the free movement of goods (Article 28 EC),

Is Council Directive 92/27/EEC (1) of 31 March 1992 on the
labelling of medicinal products for human use and on package
leaflets (OJ 1992 L 113, p. 8) in conjunction with Council
Directive 65/65/EEC (2) of 26 January 1965 on the approxi-
mation of provisions laid down by law, regulation or adminis-
trative action relating to proprietary medicinal products (OJ,
English Special Edition, 1965-1966, p. 20) and the Second
Council Directive 75/319/EEC (3) of 20 May 1975 on the
approximation of provisions laid down by law, regulation or
administrative action relating to proprietary medicinal prod-
ucts (OJ 1975 L 147, p. 13) or, in the alternative, the principle
of
to be
interpreted in such a way that Community law precludes
legislation which requires the package leaflets —
national
which in other respects comply with Community law ‘of old
medicinal products’, that is to say products on the market for
a long time but for which the post-marketing authorisation
procedure is still pending, to include the following notice:
ist nach den gesetzlichen U¨ bergangs-
‘Dieses Arzneimittel
vorschriften im Verkehr. Die behördliche Prüfung auf pharma-
zeutische Qualität, Wirksamkeit und Unbedenklichkeit
ist
noch nicht abgeschlossen.’ (‘This medicinal product is market-
ed in accordance with the statutory transitional provisions.
Official verification of the product’s pharmaceutical quality,
efficacy and safety has not yet been concluded.’)?

(1) OJ L 113 of 30.04.1992, p. 8.
(2) OJ P 022 of 09.02.1965, p. 369.
(3) OJ L 147 of 09.06.1975, p. 13.

Reference for a preliminary ruling by the Bundessozial-
gericht by order of that Court of 30 January 2002 in the
case of Maria Purschke against Landesversicherungsan-
stalt Oberbayern

(Case C-156/02)

(2002/C 180/16)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundessozialgericht
(Federal Social Court) of 30 January 2002, received at the
Court Registry on 29 April 2002, for a preliminary ruling in
the case of Maria Purschke against Landesversicherungsanstalt
Oberbayern (Regional Insurance Office for Oberbayern) on the
following questions:

2.

If so, are that provision and point C Germany (1) of
Annex VI to Regulation (EEC) No 1408/71 compatible
with higher-ranking European law,
in particular the
requirement of freedom of movement under Article 39
EC in conjunction with Article 42 EC?

(1) OJ L 149, p. 2.

Appeal brought on 15 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Joined Cases T-127/99,
T-129/99 and T-148/99 (not yet published) between
Territorio Histo´ rico de A´ lava — Diputacio´ n Foral de
A´ lava and Others and Commission of the European
Communities

(Case C-183/02 P)

(2002/C 180/17)

An appeal against the judgment delivered on 6 March 2002
by the Third Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Joined Cases
T-127/99, T-129/99 and T-148/99 between Territorio His-
to´ rico de A´ lava — Diputacio´ n Foral de A´ lava and Others and
Commission of
the European Communities was brought
before the Court of Justice of the European Communities on
15 May 2002 by Daewoo Electronics Manufacturing Espan˜ a
SA (DEMESA), represented by Antonio Creus Carreras and
Begon˜ a Uriarte Valiente, Abogados, of calle Vela´zquez No 63,
Madrid.

The appellant claims that the Court should:

1.

2.

3.

declare the present appeal admissible and consequently:

set aside the judgment of the Court of First Instance of
6 March 2002;

itself give final judgment in the matter on the basis of the
appellant’s pleadings at first instance and, in particular,
annul Article 1(d) and Article 2 of the decision of the
Commission of 24 February 1999;

C 180/10

EN

Official Journal of the European Communities

27.7.2002

4.

in the alternative, refer the case back to the Court of First
Instance for judgment, if the Court of Justice should deem
that appropriate;

5.

order the Commission to pay the costs in both sets of
proceedings.

— Error in law, when applying Articles 87 and 88 EC and
Article 1 of Council Regulation (EC) No 659/1999 of
22 March 1999 laying down detailed rules for the
application of Article 93 of the EC Treaty (1), for consider-
ing that the tax credit is not existing aid, and lack of
statement of reasons: in the event that the Court should
take the view that the Commission’s criteria regarding tax
measures have changed, the tax credit constitutes existing
aid.

Pleas in law and main arguments

— Error in law in applying Article 87 EC to the 45 % tax
credit on investment and lack of statement of reasons in
the judgment with regard to that aspect:

— Discretion of the public authorities: at issue in the
proceedings before the Court of First Instance was
Norma Foral No 22/1994 specifically as applied to
the undertaking Demesa rather than in general,
which is the subject of another decision of the
Commission on State aid and of another action for
annulment. As may be inferred from the decision
granting application of the tax credit to Demesa,
which constituted the subject-matter of proceedings
before the Court of First Instance, the Diputacio´ n
Foral de Alava merely applies the provision as
it stands, without imposing any conditions. The
existence of prior authorisation of the public auth-
orities is entirely logical and sought by the undertak-
ings themselves. In fact, such prior oversight gives
ample legal certainty to the undertakings covered by
that provision, since it implies that Hacienda Foral
(regional
approved the
amounts invested, including assets, etc, instead of
the uncertainty which would be entailed by the
automatic application of the tax incentive and the
possible subsequent inspection.

finance ministry) has

— requirement

to invest ESP 2 500 million:

this
requirement does not make the measure selective,
since it is applied objectively to all undertakings in
all sectors which invest that amount and is not
restricted to undertakings with considerable finan-
cial resources.

that

it was evident

— Error in law for not considering applicable the principle
of legitimate expectations: when Demesa applied for and
was granted the tax credit,
the
Commission’s criteria for deciding whether tax measures
constituted State aid were very different from the present
criteria. Since that was the situation at the material time,
it seems excessive for the Court of First Instance to require
Demesa to take the step of verifying whether the tax
measure under the legislation applicable to it fulfilled
the requirements laid down in Article 87 and should,
therefore, be notified to the Commission. Not even the
Commission was certain in that respect, given its failure
to act with regard to the measure concerned.

(1) OJ 1999 L 83.

Action brought on 17 May 2002 by Commission of the
European Communities against Portuguese Republic

(Case C-185/02)

(2002/C 180/18)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 17 May
2002 by the Commission of the European Communities,
represented by Anto´ nio Caeiros, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

Even if it were selective, the tax credit would still be
justified by the nature or scheme of the system in that it
is not an exceptional measure but a provision of general
scope which applies to any undertaking making an initial
investment in Alava which fulfils the requisite conditions
laid down in the legislation in issue; such conditions
cannot in any event be described as extraordinary or
discriminatory.

— Declare that, by failing to notify the plans and projects
provided for in Article 11 of Council Directive 96/
59/EC (1) of 16 September 1996 on the disposal of
polychlorinated biphenyls and polychlorinated terphen-
yls (PCB/PCT) and the summary of inventories provided
for in Article 4(1) of the directive, the Portuguese Republic
has failed to fulfil its obligations under those provisions;
and