CELEX: C2000/273/10
Language: en
Date: 2000-09-23 00:00:00
Title: Case C-262/00: Reference for a preliminary ruling by the Hessisches Finanzgericht by order of that court of 21 February 2000 in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion Koblenz

C 273/6                 EN                      Official Journal of the European Communities                                          23.9.2000
Case C-418/97                                                                    set out in Article 1(a) of Directive 75/442, as amended by
                                                                                 Directive 91/156, that is to say the discarding of the substance
                                                                                 in question or the intention or requirement to discard it, regard
1.  It may not be inferred from the mere fact that a substance such              being had to the aim of the directive and the need to ensure that
    as LUWA-bottoms undergoes an operation listed in Annex IIB                   its effectiveness is not undermined.
    to Council Directive 75/442/EEC of 15 July 1975 on waste,
    as amended by Council Directive 91/156/EEC of 18 March                       For the purpose of determining whether the use of a substance
    1991, that that substance has been discarded so as to enable it              such as wood chips as fuel is to be regarded as constituting
    to be regarded as waste for the purposes of that directive.                  discarding, it is irrelevant that that substance may be recovered
                                                                                 in an environmentally responsible manner for use as fuel
                                                                                 without substantial treatment.
2.  For the purpose of determining whether the use of a substance
                                                                                 The fact that that use as fuel is a common method of recovering
    such as LUWA-bottoms as a fuel is to be regarded as
                                                                                 waste and the fact that that substance is commonly regarded as
    constituting discarding, it is irrelevant that that substance may
                                                                                 waste may be taken as evidence that the holder has discarded
    be recovered in an environmentally responsible manner for use
                                                                                 that substance or intends or is required to discard it within the
    as fuel without substantial treatment.
                                                                                 meaning of Article 1(a) of Directive 75/442, as amended by
                                                                                 Directive 91/156. However, whether it is in fact waste within
                                                                                 the meaning of that directive must be determined in the light of
    The fact that that use as fuel is a common method of recovering              all the circumstances, regard being had to the aim of the
    waste and the fact that that substance is commonly regarded as               directive and the need to ensure that its effectiveness is not
    waste may be taken as evidence that the holder has discarded                 undermined.
    that substance or intends or is required to discard it within the
    meaning of Article 1(a) of Directive 75/442, as amended by
    Directive 91/156. However, whether it is in fact waste within          (1) OJ C 41 of 7.2.1998. OJ C 55 of 20.2.1998.
    the meaning of the directive must be determined in the light of
    all the circumstances, regard being had to the aim of the
    directive and the need to ensure that its effectiveness is not
    undermined.
    The fact that a substance used as fuel is the residue of the
    manufacturing process of another substance, that no use for            Reference for a preliminary ruling by the Hessisches
    that substance other than disposal can be envisaged, that the          Finanzgericht by order of that court of 21 February
    composition of the substance is not suitable for the use made of       2000 in the case of Lohmann GmbH & Co. KG v
    it or that special environmental precautions must be taken when                           Oberfinanzdirektion Koblenz
    it is used may be regarded as evidence that the holder has
    discarded that substance or intends or is required to discard it
    within the meaning of Article 1(a) of that directive. However,                                     (Case C-262/00)
    whether it is in fact waste within the meaning of the directive
    must be determined in the light of all the circumstances, regard                                   (2000/C 273/10)
    being had to the aim of the directive and the need to ensure that
    its effectiveness is not undermined.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Hessisches Finanzge-
                                                                           richt (Finance Court, Hessen) of 21 February 2000, received at
Case C-419/97                                                              the Court Registry on 28 June 2000, for a preliminary ruling
                                                                           in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion
                                                                           Koblenz (Principal Revenue Office, Koblenz) on the following
                                                                           questions:
1.  It may not be inferred from the mere fact that a substance such
    as wood chips undergoes an operation listed in Annex IIB to            1.    Does the description ‘orthopaedic appliances’ within the
    Directive 75/442, as amended by Directive 91/156, that that                  meaning of CN Code No 9021 cover an elbow bracelet,
    substance has been discarded so as to enable it to be regarded               called epX Elbow Basic, and an elbow support, called epX
    as waste for the purposes of the directive.                                  Elbow Dynamic, made of 1 mm-thick three-layer material
                                                                                 in a single colour, with a synthetic central layer enclosed
                                                                                 between two elastic membranes; tubular in shape and
2.  The fact that a substance is the result of a recovery operation              manufactured by sewing together, with a length of 8 cm
    within the meaning of Annex IIB to that directive is only one                (elbow bracelet) and 22 cm (elbow support, the latter
    of the factors which must be taken into consideration for the                being also anatomically sewn), each being pulled over the
    purpose of determining whether that substance is still waste,                lower arm below the elbow and worn as a sleeve, with an
    and does not as such permit a definitive conclusion to be drawn              integrated insert, over which is passed a circular strap
    in that regard. Whether it is waste must be determined in the                with an elastic and a non-elastic part and a Velcro
    light of all the circumstances, by comparison with the definition            fastening?
 ---pagebreak--- 23.9.2000              EN                   Official Journal of the European Communities                                       C 273/7
2.    Does the term ‘solely’, used in Note 1(b) to CN Chapter               ‘recipients’. They could not therefore be aware, on the
      90 and in Note 2(b) to CN Chapters 61 and 62 allow the                basis of the decision of 5 August 1997 opening the
      elasticity of the material to be regarded as the sole                 inquiry procedure, that they would one day be regarded
      relevant criterion even if the supportive function is                 in a Commission decision as ‘recipients’ of aid which
      strengthened by other factors (in this case the insert)?              certainly never flowed to them directly.
3.    If Question 2 is answered in the affirmative:
      Is General Rule A.3(b) in the General rules for the
      interpretation of the combined nomenclature suitable for
      determining the question when the supportive function            Compatibility with the common market of
      of the other factors, not made of elastic material, is           the aid granted to System Microelectronic
      predominant, or what other criteria should be used to            Innovation GmbH i.GV (SMI) and Silicium
      determine the question?                                          Microelectronic Integration GmbH (SiMI)
                                                                       —    Breach of essential procedural requirements (errors in
                                                                            ascertaining the facts, defective statement of reasons):
                                                                            findings that Synergy Semiconductor Corporation (Syn-
                                                                            ergy) was to take over, and did take over, management
Action brought on 11 July 2000 by the Federal Republic                      and control of Halbleiterelektronik Frankfurt/Oder GmbH
of Germany against the Commission of the European                           (HEG), later renamed SMI, cannot be found at all in the
                          Communities                                       contested decision, since the Commission incorrectly
                                                                            assumed that the acquisition of 49 % of the shares
                        (Case C-277/00)                                     excluded acquisition of control.
                        (2000/C 273/11)
                                                                            The Commission failed to find that the loan by the Land
An action against the Commission of the European Communi-                   of Brandenburg to SMI is based on the privatisation
ties was brought before the Court of Justice of the European                agreement and is to be regarded as part of the consider-
Communities on 11 July 2000 by the Federal Republic of                      ation from the public authorities on the occasion of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat in             privatisation.
the Federal Ministry of Financial Affairs, 108 Graurheindorfer
Straße, D-53117 Bonn, and Dr Michael Schütte, Rechtsanwalt,
of Bruckhaus Westrick Heller Löber, 99-101 Rue de la Loi,
B-1040 Brussels.                                                            The decision is also vitiated by considerable defects in the
                                                                            reasoning. In particular there are no reasons at all for the
The applicant claims that the Court should:                                 Commission’s failure to take account of the statutory
                                                                            exception in Article 87(2)(c) EC. There are no findings
1.    Annul Commission Decision C(2000) 1063 fin. of                        whatever as regards the effects of possible aid on the
      11 April 2000 on aid to System Microelectronic Inno-                  relevant market. The Commission incorrectly assumes
      vation GmbH of Frankfurt an der Oder;                                 only that there is a ‘semiconductor market’. However,
                                                                            SMI operated only in a very restricted market for
2.    Order the Commission to pay the costs.                                customer-specific and application-specific circuits.
Pleas in law and main arguments
                                                                       —    Breach of Article 87(1) EC: the decision infringes substan-
                                                                            tive law, in so far as it declares the financial measures
Procedural errors                                                           of the Treuhandanstalt and its successor BvS to be
                                                                            incompatible with the common market. The Commission
—     Breach of the principle of the right to a hearing and of              incorrectly considered that the Treuhand scheme, that is,
      the procedural rule in Article 88(2) EC in so far as the              an existing aid scheme, did not apply to the payments by
      Federal Republic of Germany is required to recover aid of             the Treuhandanstalt of DEM 64,8 million, because it
      DEM 140.1 million also from Silicium Microelectronic                  obviously made a wrong assessment of the privatisation.
      Integration GmbH (SiMI), Microelectronic Design and                   In fact Synergy, by acquiring its holding in SMI, took over
      Development GmbH (MD&D) and other unnamed under-                      management of the undertaking and comprehensive
      takings: at no time was an inquiry procedure carried out              rights of control over the company. In addition, the
      against aid in favour of those undertakings. The inquiry              agreements also include all the other elements of a typical
      procedure which led up to the contested decision was at               privatisation agreement, such as a jobs guarantee, know-
      no time extended by the Commission to the other                       how transfer, surplus earnings transfer, excess profit
      undertakings described in the contested decision as                   transfer and an environmental contamination clause.