Judgment of the Court of 24 September 2002 in Joined Cases C-74/00 P and C-75/00 P: Falck SpA, Acciaierie di Bolzano SpA, v Commission of the European Communities (State aid — ECSC scheme — Rights of the recipient of aid — Scope: no need for trade and competition to be affected — Applicability of different State aid codes over time — Rate of interest to be applied for the repayment of incompatible aid)
Date: 2002-11-09
Institutions: Court of Justice
Subjects: General Court (EU), Italy, State aid, action for annulment (EU), iron and steel industry, judicial proceedings

9.11.2002

EN

Official Journal of the European Communities

C 274/5

ruling in the proceedings pending before that court between
Concordia Bus Finland Oy Ab, formerly Stagecoach Finland
Oy Ab, and Helsingin kaupunki, HKL-Bussiliikenne, on the
interpretation of Articles 2(1)(a), (2)(c) and (4) and 34(1) of
Council Directive 93/38/EEC of 14 June 1993 coordinating
the procurement procedures of entities operating in the water,
energy, transport and telecommunications sectors (OJ 1993
L 199, p. 84), as amended by the Act concerning the conditions
of accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden and the adjustments to the
Treaties on which the European Union is founded (OJ 1994
C 241, p. 21, and OJ 1995 L 1, p. 1), and Article 36(1) of
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1), the Court, composed of:
G.C. Rodríguez Iglesias, President, P. Jann and F. Macken
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La
Pergola, M. Wathelet, R. Schintgen and V. Skouris (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 17 September
2002, in which it has ruled:

1. Article 36(1)(a) of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award
of public service contracts must be interpreted as meaning that
where, in the context of a public contract for the provision of
urban bus transport services, the contracting authority decides
to award a contract to the tenderer who submits the economically
most advantageous tender,
it may take into consideration
ecological criteria such as the level of nitrogen oxide emissions
or the noise level of the buses, provided that they are linked to
the subject-matter of the contract, do not confer an unrestricted
freedom of choice on the authority, are expressly mentioned in
the contract documents or the tender notice, and comply with
all the fundamental principles of Community law, in particular
the principle of non-discrimination.

2.

3.

The principle of equal treatment does not preclude the taking
into consideration of criteria connected with protection of the
environment, such as those at issue in the main proceedings,
solely because the contracting entity’s own transport undertaking
is one of the few undertakings able to offer a bus fleet satisfying
those criteria.

The answer to the second and third questions would not be
different if the procedure for the award of the public contract at
issue in the main proceedings fell within the scope of Council
Directive 93/38/EEC of 14 June 1993 coordinating the
procurement procedures of entities operating in the water,
energy, transport and telecommunications sectors.

( 1) OJ C 102 of 8.4.2000.

JUDGMENT OF THE COURT

of 24 September 2002

in Joined Cases C-74/00 P and C-75/00 P: Falck SpA,
Acciaierie di Bolzano SpA, v Commission of the European
Communities (1)

(State aid — ECSC scheme — Rights of the recipient of aid
— Scope: no need for trade and competition to be affected
— Applicability of different State aid codes over time —
Rate of interest to be applied for the repayment of incompat-
ible aid)

(2002/C 274/07)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-74/00 P and C-75/00 P: Falck SpA,
established in Milan (Italy), (lawyers: G. Macrì, M. Condinanzi
and F. Colussi) Acciaierie di Bolzano SpA, established in
Bolzano (Italy) (lawyer: B. Nascimbene) — appeal against the
judgment of the Court of First Instance of the European
Communities (Fifth Chamber, Extended Composition) of
16 December 1999 in Case T-158/96 Acciaierie di Bolzano v
Commission [1999] ECR II-3927, the other parties to the
proceedings being Commission of the European Communities
(Agents: V. di Bucci and K.-D. Borchardt) and Italian Republic
(Agent: U. Leanza, assisted by D. Del Gaizo), with an address
for service in Luxembourg, the Court, composed of: G.C. Rodrí-
guez Iglesias, President, P. Jann, F. Macken, N. Colneric and
S. von Bahr (Presidents of Chambers), D.A.O. Edward, A. La
Pergola, J.-P. Puissochet (Rapporteur), M. Wathelet, V. Skouris
and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;
L. Hewlett, Administrator, for the Registrar, gave a judgment
on 24 September 2002 in which it:

1.

Sets aside the judgment of the Court of First Instance of
16 December 1999 in Case T-158/96 Acciaierie di Bolzano
v Commission in so far as the Commission’s tardiness in
requiring repayment entailed an infringement of the principle
of legal certainty;

2. Dismisses the remainder of the appeals;

3. Dismisses the action for annulment brought by Acciaierie di

Bolzano SpA before the Court of First Instance;

C 274/6

EN

Official Journal of the European Communities

9.11.2002

4. Orders Falck SpA and Acciaierie di Bolzano SpA to share the

costs in Cases C-74/00 P and C-75/00 P;

5. Orders the Italian Republic to bear its own costs in Cases

C-74/00 P and C-75/00 P.

( 1) OJ C 135 of 13.5.2000.

mission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Regulation (EEC)
No 2913/92, but precludes the taxable value from varying
according to the marketing stage where this may result, at least
in certain cases, in the amount of the tax on an imported used
car exceeding the amount of the residual tax incorporated in the
value of a similar used car already registered in the national
territory.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 19 September 2002

in Case C-101/00 (Reference for a preliminary ruling
from the korkein hallinto-oikeus): Tulliasiamies, v Antti
Siilin (1)

(Taxation of imported used cars — First paragraph of Article
95 of the EC Treaty (now, after amendment, first paragraph
of Article 90 EC) — Sixth VAT Directive)

(2002/C 274/08)

(Language of the case: Finnish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-101/00: Reference to the Court under Article 234
EC by the korkein hallinto-oikeus (Finland) for a preliminary
ruling in the proceedings pending before that court brought
by Tulliasiamies, and Antti Siilin, on the interpretation of the
first paragraph of Article 95 of the EC Treaty (now, after
amendment, the first paragraph of Article 90 EC) and of the
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1), in the version of
Council Directive 92/111/EEC of 14 December 1992
amending Directive 77/388/EEC and introducing simplifi-
cation measures with regard to value added tax (OJ 1992
L 384, p. 47), the Court (Fifth Chamber), composed of: P. Jann,
President of
the Chamber, S. von Bahr, A. La Pergola,
M. Wathelet (Rapporteur) and C.W.A. Timmermans, Judges;
C. Stix-Hackl, Advocate General; L. Hewlett, Principal Adminis-
trator, for the Registrar, has given a judgment on 19 September
2002, in which it has ruled:

1.

The first paragraph of Article 95 of the EC Treaty (now, after
amendment, the first paragraph of Article 90 EC) allows a
Member State to apply to used vehicles imported from another
Member State a system of taxation under which the taxable
value is determined by reference to the customs value as defined
by Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code and Com-

2.

The first paragraph of Article 95 of the Treaty precludes a
Member State from applying to used cars imported from
another Member State a system of taxation under which the
tax on those vehicles

— is equal, during the first six months from the registration
or bringing into use of the vehicle, to the tax charged on
a similar new vehicle, and

— is equal, from the 7th to the 150th month of use of the
vehicle, to the tax on a similar new vehicle, with a linear
reduction by a percentage of 0,5 % per full calendar
month,

taxation does not

since such a system of
take the actual
depreciation of the vehicle into account and does not provide a
guarantee that the amount of tax it determines will in no case
exceed the residual tax incorporated in the value of a similar
used car already registered in the national territory.

3. Where a Member State applies to used cars imported from
other Member States a system of taxation under which the
actual depreciation of the vehicles is defined in a general and
abstract way on the basis of criteria laid down by national law,
the first paragraph of Article 95 of the Treaty requires that
system of taxation to be arranged in such a way, making
allowance for the reasonable approximations inherent in any
system of that type, as to exclude any discriminatory effect. That
requirement presupposes, first, that the criteria on which the
flat-rate method of calculating the depreciation of vehicles is
based are made public and, second, that the owner of a used
vehicle imported from another Member State is able to challenge
the application of a flat-rate method of calculation to that
vehicle, which may mean that its particular characteristics have
to be examined in order to ensure that the tax applied to it does
not exceed the residual tax incorporated in the value of a similar
used vehicle already registered in the national territory.

4. A tax such as that at issue in the main proceedings, described
in national
law as ‘value added tax’ on car tax, does not
constitute ‘value added tax’ within the meaning of the Sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment, in the version of Council Directive 92/
111/EEC of 14 December 1992 amending Directive 77/388/
EEC and introducing simplification measures with regard to
value added tax, and is compatible with Article 33 of that
directive.