Case C-319/02: Reference for a preliminary ruling by the korkein Hallinto-oikeus by order of that Court of 10 September 2002 in the appeal brought by Petri Mikael Manninen
Date: 2002-11-09
Institutions: Court of Justice
Subjects: Finland, Sweden, interpretation of the law, public limited company, tax relief

C 274/18

EN

Official Journal of the European Communities

9.11.2002

Appeal brought on 10 September 2002 by Hijos de
Andrés Molina S.A. against the judgment delivered by the
Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities on 10 July
2002 in Case T-152/99 between Hijos de Andrés Molina
S.A. and the Commission of the European Communities

(Case C-316/02 P)

(2002/C 274/29)

An appeal against the judgment delivered by the Fifth Chamber
(Extended Composition) of the Court of First Instance of the
European Communities on 11 July 2002 in Case T-152/99
between Hijos de Andrés Molina S.A. and the Commission of
the European Communities was brought before the Court of
Justice of the European Communities on 10 September 2002
by Hijos de Andrés Molina S.A. (HAMSA), represented by Luis
Manuel Olivencia Brugger and José Luis Ballester García-
Izquierdo, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside in part the judgment of 11 July 2002, and rule

(a)

(b)

that
the aid granted to HAMSA in 1994 was
compatible with Community law, being compatible
with the general aid scheme applicable;

that the aid granted pursuant to the HAMSA restruc-
turing plan in December 1995 was compatible with
Community law;

(c)

uphold the remainder of the contested judgment of
11 July 2002 which is not challenged in this appeal.

Pleas in law and main arguments

(a)

The aid received by HAMSA in 1994 on the basis of a
general aid scheme previously approved by the Com-
mission was compatible with Community law:

In its judgment the Court of First Instance introduced a
new matter, extraneous to the proceedings and to the
dispute brought before it. Whereas the parties, HAMSA
and the Commission, took the view that the aid granted
in 1993 and 1994 was regulated by general aid schemes
N 624792 and N 428/93, respectively, the Court of First
Instance considered that schemes N 428/93 and N 462/
94 applied to the aid granted in 1993 and 1994,
respectively.

HAMSA had no opportunity, during either the adminis-
trative or the judicial procedure, to put forward its
arguments concerning that new formulation by the Court
of First Instance of the matter at issue, which amounted
to breach of HAMSA’s right to a fair hearing. In its
submission, that fact constitutes a breach of procedure
which adversely affects its interests within the meaning
of Article 51 of the EEC Statute of the Court of Justice.

Secondly, the appellant alleges that the Court of First
Instance failed to analyse the aid granted to HAMSA in
1994 in accordance with scheme N 462/94 which it
regards as applicable.

(b) The rescue and restructuring aid granted on the basis of a
restructuring plan was compatible with the common
market:

In its decision of 3 February 1999 the Commission stated
that it had not received the HAMSA restructuring plan
until 4 July 1997. None the less, in response to questions
asked by the Court of First Instance a few days before the
hearing,
it had
the Commission acknowledged that
received the restructuring plan before the Spanish auth-
orities notified it of the aid on 1 July 1996. In actual fact,
the restructuring plan was delivered by a Spanish official
to a Community official in DG Agriculture in January
1996, but the Commission did not decide to initiate the
procedure under Article 93(3) of the Treaty or to adopt
measures of any kind with regard to the plan and the aid
granted in implementing it
in accordance with the
provisions of the directives relating to the rescuing and
restructuring of undertakings in crisis. Later, on 29 April
1997, that is to say, 14 months after the restructuring
plan was notified, the Commission gave notice of the
opening of the procedure, considering that the aid had
not been notified, when, following the Lorenz case-law,
it ought to have been regarded as existing aid.

Reference for a preliminary ruling by the korkein Hallin-
to-oikeus by order of that Court of 10 September 2002 in
the appeal brought by Petri Mikael Manninen

(Case C-319/02)

(2002/C 274/30)

Justice of the
Reference has been made to the Court of
European Communities by order of the korkein Hallinto-
oikeus (Supreme Administrative Court) of 10 September 2002,

9.11.2002

EN

Official Journal of the European Communities

C 274/19

received at the Court Registry on 12 September 2002, for a
preliminary ruling in the appeal brought by Petri Mikael
Manninen on the following questions:

1.

2.

Is Article 56 of the Treaty establishing the European
Community to be interpreted as precluding a corporation
tax credit system like the Finnish one described above, in
which the recipient of a dividend who is generally liable
to tax in Finland is granted a corporation tax credit in
respect of a dividend paid by a domestic share company,
but not in respect of dividend income he receives from a
share company registered in Sweden?

If the answer to the above question is in the affirmative,
may Article 58 EC be interpreted as meaning that the
provisions of Article 56 are without prejudice to Finland’s
right to apply the relevant provisions of the Law on
Corporation Tax Credits, since it
is a condition for
obtaining a corporation tax credit in Finland that the
company distributing the dividend has paid the corre-
sponding tax or supplementary tax in Finland, which
does not take place with respect to a dividend paid from
abroad, in which case taxation is not even carried out
once?

Reference for a preliminary ruling by the Regeringsrätten
(Sweden) by order of that Court of 10 September 2002 in
the case of Förvaltnings AB Stenholmen against Riksskat-
teverket

(Case C-320/02)

(2002/C 274/31)

Reference has been made to the Court of Justice of the
European Communities by order of
the Regeringsrätten
(Supreme Administrative Court) (Sweden) of 10 September
2002, received at the Court Registry on 13 September 2002,
for a preliminary ruling in the case of Förvaltnings AB
Stenholmen against Riksskatteverket (National Tax Board) on
the following questions:

1.

Can an animal be considered to be second-hand goods?

If that question is answered in the affirmative, the Court
is asked to answer the following question.

2.

Is an animal which is purchased from a private individual
(rather than a breeder) and which is sold, after training,
for a specific purpose to be considered to be second-hand
goods?

Action brought on 16 September 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-324/02)

(2002/C 274/32)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 16 Sep-
tember 2002 by the Commission of the European Communi-
ties, represented by Gregorio Valero Jordana, of its Legal
Service, with an address for service in Luxembourg.

The applicant claims that the Court of Justice should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/30/EC (1) of 22 April 1999
relating to limit values for sulphur dioxide, nitrogen
dioxide and oxides of nitrogen, particulate matter and
lead in ambient air or,
in any event, by failing to
communicate such provisions to the Commission, the
Kingdom of Spain has failed to fulfil its obligations under
that directive;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The binding nature of the third paragraph of Article 249 EC
and the first paragraph of Article 10 EC requires the Member
States to adopt the measures necessary to implement the
directives addressed to them before the expiry of the period
prescribed for that purpose. The period in question expired on
19 July 2001 without Spain’s having introduced the necessary
measures.

(1) OJ L 163, 29.6.1999, p. 41.

Action brought on 17 September 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-326/02)

(2002/C 274/33)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 17 Sep-