Case C-368/04: Judgment of the Court (Third Chamber) of 5 October 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Transalpine Ölleitung in Österreich GmbH, Planai-Hochwurzen-Bahnen GmbH, Gerlitzen-Kanzelbahn-Touristik GmbH & Co KG v Finanzlandesdirektion für Tirol, Finanzlandesdirektion für Steiermark, Finanzlandesdirektion für Kärnten (State aid — Last sentence of Article 88(3) EC — Partial rebate on energy taxes — Failure to give notice of the aid — Commission decision — Declaration of the compatibility of the aid with the common market in respect of a particular period in the past — Effect on rebate applications made by undertakings not benefiting from the aid — Powers of national courts and tribunals)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: State aid, control of State aid, environmental tax, interpretation of the law, redemption

C 294/8

EN

Official Journal of the European Union

2.12.2006

3) Article 59 of the EEC Treaty must be interpreted as not being
applicable in favour of a provider of services who is a national of
a non-member country.

(1) OJ C 228, 11.09.2004.

Judgment of the Court (First Chamber) of 5 October 2006
— Commission of the European Communities v Kingdom
of the Netherlands

(Case C-312/04) (1)

(Failure of a Member State to fulfil obligations — Commu-
nities' own resources — Undischarged TIR carnets — Proce-
dures for collecting import duties — Non-compliance —
Failure to transfer the related own resources and to pay
default interest)

Judgment of the Court (Third Chamber) of 5 October
2006 (reference for a preliminary ruling from the Verwal-
tungsgerichtshof — Austria) — Transalpine Ölleitung in
Österreich GmbH, Planai-Hochwurzen-Bahnen GmbH,
Gerlitzen-Kanzelbahn-Touristik GmbH & Co KG v Finan-
Finanzlandesdirektion für
zlandesdirektion für Tirol,

Steiermark, Finanzlandesdirektion für Kärnten

(Case C-368/04) (1)

(State aid — Last sentence of Article 88(3) EC — Partial
rebate on energy taxes — Failure to give notice of the aid —
Commission decision — Declaration of the compatibility of
the aid with the common market in respect of a particular
period in the past — Effect on rebate applications made by
undertakings not benefiting from the aid — Powers of
national courts and tribunals)

(2006/C 294/13)

Language of the case: German

(2006/C 294/12)

Language of the case: Dutch

Referring court

Verwaltungsgerichtshof

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Wilms and A. Weimar, Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and J.G.M. van Bakel, Agents)

Re:

Failure of a Member State to fulfil obligations — Articles 2(1),
6(2), 10(1) and 11 of Council Regulation (EEC, Euratom) No
1552/89 of 29 May 1989 implementing Decision 88/376/EEC,
Euratom, on the system of the Communities' own resources (OJ
1989 L 155, p. 1) — Failure to initiate, within the period
prescribed, procedures for the collection of customs duties
further to irregularities in the transport of goods covered by
TIR carnets — Failure to transmit, within the period prescribed,
the related own resources and to pay the default interest

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 228, 11.09.2004.

Parties to the main proceedings

Applicants: Transalpine Ölleitung in Österreich GmbH, Planai-
Hochwurzen-Bahnen GmbH, Gerlitzen-Kanzelbahn-Touristik
GmbH & Co KG

Defendants: Finanzlandesdirektion für Tirol, Finanzlandesdirek-
tion für Steiermark, Finanzlandesdirektion für Kärnten

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof
(Austria) — Interpretation of Article 88(3) EC — State aid
granted in breach of the prohibition on implementing aid prior
to the Commission's decision — Aid consisting in the partial
reimbursement of energy tax solely to businesses manufac-
turing goods — Effects of the Commission's subsequent deci-
sion declaring the aid compatible with the common market

Operative part of the judgment

1. The last sentence of Article 88(3) EC must be interpreted as
meaning that it is for the national courts to safeguard the rights
of individuals against possible disregard, by the national authori-
ties, of
the prohibition on putting aid into effect before the
Commission of the European Communities has adopted a decision
authorising that aid. In doing so, the national court must take the
Community interest fully into consideration and must not adopt a
measure which would have the sole effect of extending the circle of
recipients of the aid.

2.12.2006

EN

Official Journal of the European Union

C 294/9

2. Since a decision of the Commission of the European Communities
declaring aid that has not been notified compatible with the
common market does not have the effect of regularising ex post
facto implementing measures which, at the time of their adoption,
were invalid because they had been taken in disregard of the prohi-
bition referred to in the last sentence of Article 88(3) EC, it is of
little consequence whether an application is made before or after
adoption of the decision declaring the aid compatible with the
common market, since that application relates to the unlawful
situation resulting from the lack of notification.

(1143/1994)), which makes the importation of undenatured ethyl
alcohol of an alcoholic strength of more than 80 % subject
to
obtaining prior authorisation, unless it appears that, in the circum-
stances of law and of fact which characterise the situation in the
Member State concerned, the protection of public health and public
order against the harm caused by alcohol can be secured by measures
having less effect on intra-Community trade.

(1) OJ C 300, 04.12.2004.

(1) OJ C 273, 06.11.2004.

Judgment of the Court (Third Chamber) of 28 September
2006 (reference for a preliminary ruling from the Korkein
oikeus — Finland) — Criminal proceedings against Jan-
Erik Anders Ahokainen, Mati Leppik

(Case C-434/04) (1)

(Free movement of goods — Articles 28 EC and 30 EC —
National legislation prohibiting, without prior authorisation,
the importation of undenatured ethyl alcohol of an alcoholic
strength of more than 80 % — Measure having equivalent
effect to a quantitative restriction — Justification on the
grounds of protection of public health and public order)

(2006/C 294/14)

Language of the case: Finnish

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Verwal-
tungsgericht Frankfurt am Main — Germany) — Fidium
Finanz AG v Bundesanstalt für Finanzdienstleistungsauf-
sicht

(Case C-452/04) (1)

(Freedom to provide services — Free movement of capital —
Companies established in non-member countries — Activity
entirely or principally directed towards the territory of a
Member State — Grant of credit on a commercial basis —
Requirement of prior authorisation in the Member State in
which the service is provided)

(2006/C 294/15)

Language of the case: German

Referring court

Korkein oikeus

Parties in the main proceedings

Jan-Erik Anders Ahokainen, Mati Leppik

Referring court

Verwaltungsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Fidium Finanz AG

Re:

Defendant: Bundesanstalt für Finanzdienstleistungsaufsicht

Reference for a preliminary ruling — Korkein oikeus — Inter-
pretation of Articles 28 EC and 30 EC with respect to national
legislation subjecting the importation of non-denatured ethyl
alcohol of over 80 % to prior authorisation

Re:

Operative part of the judgment

Articles 28 EC and 30 EC do not preclude a system, such as that
(Alkoholilaki
laid down by Law No 1143/1994 on alcohol

Reference for a preliminary ruling — Verwaltungsgericht
Frankfurt am Main — Interpretation of Arts 49, 56 and 58 EC
— Undertaking established in a non-member country whose
loans, are directed
activities, consisting in the granting of
entirely or principally at the territory of a Member State —
Requirement of prior authorisation in the Member State in
which the service is provided