Case C-295/07 P: Appeal lodged on 20 June 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-369/00 Département du Loiret, supported by Scott SA v Commission of the European Communities
Date: 2007-09-08
Institutions: Court of Justice
Subjects: European Commission, France, State aid, action for annulment (EU), appeal

8.9.2007

EN

Official Journal of the European Union

C 211/19

Appeal lodged on 20 June 2007 by the Commission of the
European Communities against the judgment of the Court
of First Instance (First Chamber) delivered on 29 March
2007 in Case T-369/00 Département du Loiret, supported by
Scott SA v Commission of the European Communities

all the significant data relating to the amount of the aid granted,
to the rate of interest, to the period and to the amount to be
recovered were set out in its decision.

(Case C-295/07 P)

(2007/C 211/36)

Language of the case: French

Parties

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

Other parties to the proceedings: Département du Loiret, Scott SA

Form of order sought

The appellant claims that the Court should:

— uphold the appeal and, accordingly, set aside the judgment

under appeal in its entirety;

— give final

judgment in the matter and find that Decision
[2002/14/EC] (1) is sufficiently reasoned as regards the use
of a compound interest rate or,
that is not the case,
should the Court consider that the state of the proceedings
is not fit for judgment, refer the case back to the Court of
First Instance for judgment;

if

— order the applicant to bear its own costs as well as those
incurred by the Commission before the Court of Justice and
the Court of First Instance;

— order Scott SA to bear its own costs at first instance and on

appeal.

Pleas in law and main arguments

Maintaining, first of all, that the judgment under appeal is based
on an erroneous view of the Community rules in respect of
State aid, which the Court of First Instance assimilates, wrongly,
to the rules on competition between undertakings, at the date
of the order for recovery of the illegal aid, and not to rules on
competition between Member States at the date of the effective
granting of that aid, the appellant relies on eight grounds in
support of its appeal.

By its first ground of appeal,
the Commission claims that,
contrary to the Court of First Instance's finding in the judgment
under appeal, a decision ordering the recovery of aid illegally
granted is sufficiently reasoned if a simple mathematical calcula-
tion enables it to be established which method of calculation
was used. That is precisely the case in these proceedings since

By its second ground of appeal, the appellant submits that the
use of a compound interest rate was,
in any event, at least
implicit in the reasoning of its decision in view of the stated
objectives of eliminating the advantages flowing from the aid
and of re-establishing the pre-existing situation. In that perspec-
tive, the interest rate applicable to the sum to be recovered must
necessarily be a compound rate of interest in order to take
account of inflation and of the advantage gained by the reci-
pient of the aid with the passage of time.

By its third ground of appeal, the Commission asserts that by
reversing, to its detriment, the burden of proof, the Court of
First Instance made an error of law. It is, in fact, for the appli-
cant at first instance to prove the alleged change in the Commis-
sion's practice concerning the interest rate applicable to orders
for the recovery of illegal aid, and not for the Commission to
prove the absence of such a change.

By its fourth ground of appeal, the appellant submits that the
Court of First Instance made an error of law in holding that the
Commission had not stated in what respect
the company
receiving the aid still had an advantage at the date of the order
for recovery of that aid. It is at the date the aid was granted that
the Commission must establish the existence of such an advan-
tage, not at the date of its recovery.

By its fifth and sixth grounds of appeal,
the Commission
complains that the Court of First Instance based its judgment on
speculation and not on the evidence, as regards the price of the
sale of the company which received the aid to another company
and of having found that such sale price, 11 years after the
grant of the aid, was a factor which the Commission should
have taken into account in fixing the amount to be recovered.
In the field of State aid, the objective is to re-establish the earlier
situation and the amount of the aid to be recovered therefore
corresponds, necessarily, to the amount initially granted subject,
until its actual recovery, to annual compound interest, irrespec-
tive of what the recipient of the aid did with it in the meantime.

By its seventh ground of appeal, the appellant submits that the
Court of First Instance made an error of law in holding that the
fact that the recovery of the aid should take place in compliance
with the national rules necessarily implies that the interest is to
be calculated at a simple rate. While it is correct that the prin-
cipal and interest must be recovered in accordance with the
procedures of national law, the imposition of an interest rate,
just like the question whether that rate should be simple or
compound, is a matter of Community law, and not of national
law.

C 211/20

EN

Official Journal of the European Union

8.9.2007

By its eighth ground of appeal, the Commission argues, finally,
that the judgment under appeal is totally disproportionate since
it annuls its decision in its entirety whereas it was possible to
distinguish the amount of the principal from the amount of
interest payable, just as it was possible to distinguish the use of
a simple interest rate from that of a compound interest rate.

(1) Commission Decision 2002/14/EC of 12 July 2000 on the State aid
granted by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12,
p. 1).

Reference for a preliminary ruling from VAT and Duties
Tribunal, London (United Kingdom) made on 29 June 2007
— J D Wetherspoon PLC v The Commissioners of Her
Majesty's Revenue and Customs

(Case C-302/07)

(2007/C 211/38)

Language of the case: English

Reference for a preliminary ruling from the Landgericht
lodged on 21 June 2007 —
Regensburg (Germany)

Staatsanwaltschaft Regensburg v Klaus Bourquain

Referring court

VAT and Duties Tribunal, London

(Case C-297/07)

(2007/C 211/37)

Language of the case: German

Referring court

Landgericht Regensburg

Parties to the main proceedings

Applicant: Staatsanwaltschaft Regensburg

Defendant: Klaus Bourquain

Parties to the main proceedings

Applicant: J D Wetherspoon PLC

Defendant: The Commissioners of Her Majesty's Revenue and
Customs

Questions referred

1. Is the rounding off of VAT amounts governed solely by
national law, or instead governed by Community law? In par-
ticular do the first and second paragraphs of Article 2 of the
First Directive (1) and Articles 11A(l)(a) and/or 12(3)(a)
and/or Article 22(3)(b), (version as at 1st January 2004) of
the Sixth Directive (2) confirm that rounding off is a matter
of Community law?

Question referred

2. In particular:

the States of

With regard to the interpretation of Article 54 of the Conven-
tion implementing the Schengen Agreement of 14 June 1985
between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their
common borders (1), does the rule prohibiting a person whose
trial has been finally disposed of in one contracting party from
being prosecuted in another contracting party for the same act
apply, where the penalty imposed on him could never be
enforced under the laws of the sentencing contracting party?

(1) OJ 2000 L 239, p. 19.

(i) Does Community law prevent

the application of a
national rule or practice of the national taxing authority
which requires rounding up of any given VAT amount
whenever the fraction of the smallest unit of currency is
concerned is at or above 0.50 (for example, 0.5 pence is
required to be rounded up to the nearest whole pence)?

(ii) Does Community law require that

the taxpayers be
allowed to round down any VAT amount which includes
a fraction of the smallest unit of currency available?

3. In a VAT inclusive sale at which level does Community law
require rounding off to be applied for the purpose of calcu-
lating the VAT due: at the level of each individual item, each
line of goods, each supply (if more than one supply is
included in the same basket), each transaction/basket total, or
each VAT accounting period or some other level?