Case C-290/07 P: Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities
Date: 2007-08-04
Institutions: Court of Justice
Subjects: European Commission, France, State aid, action for annulment (EU), appeal, industrial plot, sanction (EU)

4.8.2007

EN

Official Journal of the European Union

C 183/25

Form of order sought

— principally, declare that, by failing to adopt the laws, regula-
tions and administrative provisions necessary to transpose
Commission Directive 2005/51/EC (1) of 7 September 2005
amending Annex XX to Directive 2004/17/EC and Annex
VIII to Directive 2004/18/EC of the European Parliament
the Portuguese
and the Council on public procurement,
Republic has failed to fulfil
its obligations under the first
paragraph of Article 3 of Directive 2005/51/EC;

— or, declare that, by failing in any event to communicate
those provisions
the Portuguese
to the Commission,
Republic has failed to fulfil its obligations under that same
provision;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 31 January 2006.

(1) OJ 2005 L 257, p. 127.

Action brought on 14 June 2007 — Commission of the
European Communities v Portuguese Republic

(Case C-289/07)

(2007/C 183/44)

Language of the case: Portuguese

Directive 2004/17/EC (1) of the European Parliament and of
the Council of 31 March 2004 coordinating the procure-
ment procedures of entities operating in the water, energy,
the Portuguese
services
transport
Republic has failed to fulfil
its obligations under the first
subparagraph of Article 71(1) of Directive 2004/17/EC;

and postal

sectors,

— or, declare that, by failing in any event to communicate
those provisions
the Portuguese
to the Commission,
Republic has failed to fulfil its obligations under that same
provision;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 31 January 2006.

(1) OJ 2004 L 134, p. 1.

Appeal brought on 14 June 2007 by Commission of the
European Communities against the judgment of the Court
of First Instance (First Chamber) delivered on 29 March
2007 in Case T-366/00: Scott S. A, supported by the
v Commission
European
French Republic
Communities

the

of

(Case C-290/07 P)

(2007/C 183/45)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Caeiros and D. Kukovec, acting as Agents)

Defendant: Portuguese Republic

Parties

Form of order sought

Appellant: Commission of the European Communities (repre-
sented by: J. Flett, Agent)

— principally, declare that, by failing to adopt the laws, regula-
tions and administrative provisions necessary to transpose

Other parties to the proceedings: Scott SA, French Republic

C 183/26

EN

Official Journal of the European Union

4.8.2007

Form of order sought

contested judgment. Finally, there was no breach of an essential
procedural requirement:

The appellant claims that the Court should:

— quash the contested the contested judgment

Scott's excluded additional comments were in re-submitted by
France on 21.2.2000,
included in the administrative file, and
assessed in the contested decision.

— give final judgement in the matters that are subject of this
appeal. Failing which, for any matter with respect to which
the Court considers that the state of the proceedings does
not permit
the Commission respectfully
requests the Court to refer the case back to the CFI for
reassessment.

judgment,

final

— Order the applicant bear its own costs and to pay those
incurred by the Commission relating to the proceedings
before this Court and before the Court of First Instance; and
order the French Republic to bear its own costs relating

Pleas in law and main arguments

The first four grounds of appeal relate to legal errors in the
contested judgment concerning the procedural rights of third
parties and the procedural obligations of the Commission in
State aid proceedings:

The first ground of appeal concerns the exclusion from the
administrative
of
comments
Scott's
24.12.1999, sent 13 months after the prescribed time limit.

additional

file

of

Given the four information requests and the information injunc-
tion the Commission was not obliged to give France a further
opportunity to produce the alleged valuations.

Scott had ample opportunity to submit comments, and in par-
ticular participated in the response to the information injunc-
tion.

Both France and Scott had ample opportunity to produce a
grant-date valuation, but failed to do so.

The fifth to eighth grounds of appeal group together what the
Commission has termed for convenience only ‘preliminary
issues’, and relate to legal errors in the contested judgment
concerning: the absence from Scott's application of any ground
of annulment relating to the alleged valuations; the Court of
First Instance's standard of review (the Commission is said to
have no margin of appreciation); the contested judgment's reli-
ance on speculation instead of evidence; and the reversal of the
burden of proof in State aid proceedings and proceedings before
the Court of First Instance.

The second ground of appeal concerns the contested judgment's
finding that the Commission was under a procedural obligation
to provide France with a further opportunity to produce the
alleged valuations.

The third ground of appeal concerns the contested judgment's
finding that the Commission was under procedural obligation
to give Scott a further opportunity to submit comments.

The fourth ground of appeal concerns the contested judgement's
finding that the Commission was under a procedural obligation
to use an ‘outside expert’.

The ninth and tenth grounds of appeal relate to substantive
legal errors concerning the factory.

The ninth ground of appeal concerns the method for assessing
the amount of State aid in transfers in kind. Contrary to what
the contested judgment finds, absent a grant-date valuation or
open tender, the Commission is lawfully entitled to use cost as
proxy for value. This was particularly reasonable in the present
case because the factory was tailored to Scott's requirements.
The contested judgment's reasoning regarding the alleged sale
price 11 years after grant is dependent on alleged procedural
irregularities and other legal errors; and is in any event substan-
tively erroneous.

In addition,

In relation to these matters, the Commission submits that the
contested judgment neither sets out nor applies the correct legal
standard: did the Commission infringe an essential procedural
requirement.
the contested judgment could not
lawfully rule on these matters since Scott's application did not
include any such grounds of annulment.
the
Commission submits that
there was no infringement of an
essential procedural requirement. No such requirements are
provided for the Procedural Regulation; and the contested judg-
ment was not entitled to ‘grant’ such rights or impose such obli-
gations based on the erroneous considerations set out in the

In any event;

The tenth ground of appeal concerns supposed errors by the
Commission in the application of the cost-based method. The
contested judgment's findings are dependent on alleged proce-
irregularities and other legal errors. The Commission's
dural
conservative estimate of the costs was the lowest possible; and
there is no basis for annulling the contested decision on the
grounds that the State aid might have been higher.

4.8.2007

EN

Official Journal of the European Union

C 183/27

The eleventh to thirteenth grounds of appeal relate to substan-
tive legal errors concerning the land.

The eleventh ground of appeal relates to the contested judg-
the conservative valuations in Orléans
ment's dismissal of
Council Minutes of 27.5.1994 as ‘a very brief summary without
detailed explanation’.

The twelfth ground of appeal concerns the method for assessing
the amount of State aid transfers in kind, and is similar to the
ninth ground of appeal. Absent a grant-date valuation or open
tender the Commission is lawfully entitled to use cost as a
proxy for value. This was particularly reasonable in the present
case because the third land purchase was tailored to Scott's
requirements. The contested judgment's reasoning regarding the
alleged tax audit dependent on alleged procedural irregularities
and other legal errors; and is in any event substantively erro-
neous.

The thirteenth ground of appeal concerns supposed errors by
the Commission in the application of the cost-based method.
The contested judgment's findings are dependent on alleged
procedural irregularities and other legal errors. The Commission
used the lowest possible land value as asserted by both France
and Scott. The facts and evidence supporting the Commission
are: the Offer Document; the alleged Galtier and Commissaire
the Orléans Council Minutes of
aux Apports valuations;
27.5.1994; and the average price of
the three land parcel
purchases. There is no basis for annulling the contested decision
on the grounds that the State aid might have been higher.

for

from the
Reference
Regeringsrätten (Sweden)
lodged on 15 June 2007 —
Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket

preliminary

ruling

a

(Case C-291/07)

(2007/C 183/46)

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Kollektivavtalsstiftelsen TRR Trygghetsrådet

Defendant: Skatteverket

Question referred

Are Articles 9(2)(e) and 21(1)(b) of the Sixth VAT Directive (1)
and Articles 56(1)(c) and 196 of the Council Directive on a
common system of value added tax (2) to be interpreted as
meaning that a person who purchases consultancy services from
a person liable to tax in another EC country and carries out both
economic activity and also activity which falls outside the scope
of the Directives is to be regarded as a taxable person/person
liable to tax where those articles are applied, even though the
purchase was made solely in respect of the latter activity?

(1) OJ 1977 L 145, p. 1.
(2) OJ 2006 L 347, p. 1.

The fourteenth ground of appeal concerns the information
injunction, particularly with respect to the land, the cost-based
method for assessing the amount of State aid, and the three
land parcel purchases. This is a procedural matter, but is dealt
with at the end because it is linked to thirteenth ground of
appeal.

Action brought on 18 June 2007 — Commission of the
European Communities v Hellenic Republic

By the fifteenth ground of appeal the Commission requests the
Court to quash the contested judgment because of the distortion
by the Court of First Instance of the clear sense of the evidence
before it, in particular because the Court of First Instance has
substituted its own reasoning for that of the contested decision.

(Case C-293/07)

(2007/C 183/47)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Konstantinidis and D. Recchia)

Defendant: Hellenic Republic