CELEX: C2002/274/07
Language: en
Date: 2002-11-09 00:00:00
Title: Judgment of the Court of 24 September 2002 in Joined Cases C-74/00 P and C-75/00 P: Falck SpA, Acciaierie di Bolzano SpA, v Commission of the European Communities (State aid — ECSC scheme — Rights of the recipient of aid — Scope: no need for trade and competition to be affected — Applicability of different State aid codes over time — Rate of interest to be applied for the repayment of incompatible aid)

9.11.2002                EN                        Official Journal of the European Communities                                            C 274/5
ruling in the proceedings pending before that court between                                     JUDGMENT OF THE COURT
Concordia Bus Finland Oy Ab, formerly Stagecoach Finland
Oy Ab, and Helsingin kaupunki, HKL-Bussiliikenne, on the
interpretation of Articles 2(1)(a), (2)(c) and (4) and 34(1) of                                       of 24 September 2002
Council Directive 93/38/EEC of 14 June 1993 coordinating
the procurement procedures of entities operating in the water,
energy, transport and telecommunications sectors (OJ 1993
L 199, p. 84), as amended by the Act concerning the conditions                in Joined Cases C-74/00 P and C-75/00 P: Falck SpA,
of accession of the Republic of Austria, the Republic of Finland              Acciaierie di Bolzano SpA, v Commission of the European
and the Kingdom of Sweden and the adjustments to the                                                     Communities ( 1)
Treaties on which the European Union is founded (OJ 1994
C 241, p. 21, and OJ 1995 L 1, p. 1), and Article 36(1) of
Council Directive 92/50/EEC of 18 June 1992 relating to the                   (State aid — ECSC scheme — Rights of the recipient of aid
coordination of procedures for the award of public service                    — Scope: no need for trade and competition to be affected
contracts (OJ 1992 L 209, p. 1), the Court, composed of:                      — Applicability of different State aid codes over time —
G.C. Rodríguez Iglesias, President, P. Jann and F. Macken                     Rate of interest to be applied for the repayment of incompat-
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La                                                    ible aid)
Pergola, M. Wathelet, R. Schintgen and V. Skouris (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 17 September                                                    (2002/C 274/07)
2002, in which it has ruled:
                                                                                                    (Language of the case: Italian)
1.    Article 36(1)(a) of Council Directive 92/50/EEC of 18 June
      1992 relating to the coordination of procedures for the award
      of public service contracts must be interpreted as meaning that         (Provisional translation; the definitive translation will be published
      where, in the context of a public contract for the provision of                              in the European Court Reports)
      urban bus transport services, the contracting authority decides
      to award a contract to the tenderer who submits the economically
      most advantageous tender, it may take into consideration
      ecological criteria such as the level of nitrogen oxide emissions
      or the noise level of the buses, provided that they are linked to
                                                                              In Joined Cases C-74/00 P and C-75/00 P: Falck SpA,
      the subject-matter of the contract, do not confer an unrestricted
                                                                              established in Milan (Italy), (lawyers: G. Macrì, M. Condinanzi
      freedom of choice on the authority, are expressly mentioned in
                                                                              and F. Colussi) Acciaierie di Bolzano SpA, established in
      the contract documents or the tender notice, and comply with
                                                                              Bolzano (Italy) (lawyer: B. Nascimbene) — appeal against the
      all the fundamental principles of Community law, in particular
                                                                              judgment of the Court of First Instance of the European
      the principle of non-discrimination.
                                                                              Communities (Fifth Chamber, Extended Composition) of
                                                                              16 December 1999 in Case T-158/96 Acciaierie di Bolzano v
                                                                              Commission [1999] ECR II-3927, the other parties to the
2.    The principle of equal treatment does not preclude the taking           proceedings being Commission of the European Communities
      into consideration of criteria connected with protection of the         (Agents: V. di Bucci and K.-D. Borchardt) and Italian Republic
      environment, such as those at issue in the main proceedings,            (Agent: U. Leanza, assisted by D. Del Gaizo), with an address
      solely because the contracting entity’s own transport undertaking       for service in Luxembourg, the Court, composed of: G.C. Rodrí-
      is one of the few undertakings able to offer a bus fleet satisfying     guez Iglesias, President, P. Jann, F. Macken, N. Colneric and
      those criteria.                                                         S. von Bahr (Presidents of Chambers), D.A.O. Edward, A. La
                                                                              Pergola, J.-P. Puissochet (Rapporteur), M. Wathelet, V. Skouris
                                                                              and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;
3.    The answer to the second and third questions would not be               L. Hewlett, Administrator, for the Registrar, gave a judgment
      different if the procedure for the award of the public contract at      on 24 September 2002 in which it:
      issue in the main proceedings fell within the scope of Council
      Directive 93/38/EEC of 14 June 1993 coordinating the
      procurement procedures of entities operating in the water,              1.    Sets aside the judgment of the Court of First Instance of
      energy, transport and telecommunications sectors.                             16 December 1999 in Case T-158/96 Acciaierie di Bolzano
                                                                                    v Commission in so far as the Commission’s tardiness in
                                                                                    requiring repayment entailed an infringement of the principle
                                                                                    of legal certainty;
( 1) OJ C 102 of 8.4.2000.
                                                                              2.    Dismisses the remainder of the appeals;
                                                                              3.    Dismisses the action for annulment brought by Acciaierie di
                                                                                    Bolzano SpA before the Court of First Instance;
 ---pagebreak--- C 274/6                  EN                      Official Journal of the European Communities                                           9.11.2002
4.    Orders Falck SpA and Acciaierie di Bolzano SpA to share the                mission Regulation (EEC) No 2454/93 of 2 July 1993 laying
      costs in Cases C-74/00 P and C-75/00 P;                                    down provisions for the implementation of Regulation (EEC)
                                                                                 No 2913/92, but precludes the taxable value from varying
5.    Orders the Italian Republic to bear its own costs in Cases                 according to the marketing stage where this may result, at least
      C-74/00 P and C-75/00 P.                                                   in certain cases, in the amount of the tax on an imported used
                                                                                 car exceeding the amount of the residual tax incorporated in the
                                                                                 value of a similar used car already registered in the national
( 1) OJ C 135 of 13.5.2000.
                                                                                 territory.
                                                                            2.   The first paragraph of Article 95 of the Treaty precludes a
                                                                                 Member State from applying to used cars imported from
                                                                                 another Member State a system of taxation under which the
                  JUDGMENT OF THE COURT                                          tax on those vehicles
                           (Fifth Chamber)
                                                                                 —      is equal, during the first six months from the registration
                                                                                        or bringing into use of the vehicle, to the tax charged on
                      of 19 September 2002
                                                                                        a similar new vehicle, and
in Case C-101/00 (Reference for a preliminary ruling
from the korkein hallinto-oikeus): Tulliasiamies, v Antti                        —      is equal, from the 7th to the 150th month of use of the
                                Siilin ( 1)                                             vehicle, to the tax on a similar new vehicle, with a linear
                                                                                        reduction by a percentage of 0,5 % per full calendar
(Taxation of imported used cars — First paragraph of Article                            month,
95 of the EC Treaty (now, after amendment, first paragraph
           of Article 90 EC) — Sixth VAT Directive)
                                                                                 since such a system of taxation does not take the actual
                           (2002/C 274/08)                                       depreciation of the vehicle into account and does not provide a
                                                                                 guarantee that the amount of tax it determines will in no case
                    (Language of the case: Finnish)                              exceed the residual tax incorporated in the value of a similar
                                                                                 used car already registered in the national territory.
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            3.   Where a Member State applies to used cars imported from
                                                                                 other Member States a system of taxation under which the
                                                                                 actual depreciation of the vehicles is defined in a general and
In Case C-101/00: Reference to the Court under Article 234                       abstract way on the basis of criteria laid down by national law,
EC by the korkein hallinto-oikeus (Finland) for a preliminary                    the first paragraph of Article 95 of the Treaty requires that
ruling in the proceedings pending before that court brought                      system of taxation to be arranged in such a way, making
by Tulliasiamies, and Antti Siilin, on the interpretation of the                 allowance for the reasonable approximations inherent in any
first paragraph of Article 95 of the EC Treaty (now, after                       system of that type, as to exclude any discriminatory effect. That
amendment, the first paragraph of Article 90 EC) and of the                      requirement presupposes, first, that the criteria on which the
Sixth Council Directive 77/388/EEC of 17 May 1977 on the                         flat-rate method of calculating the depreciation of vehicles is
harmonisation of the laws of the Member States relating to                       based are made public and, second, that the owner of a used
turnover taxes — Common system of value added tax: uniform                       vehicle imported from another Member State is able to challenge
basis of assessment (OJ 1977 L 145, p. 1), in the version of                     the application of a flat-rate method of calculation to that
Council Directive 92/111/EEC of 14 December 1992                                 vehicle, which may mean that its particular characteristics have
amending Directive 77/388/EEC and introducing simplifi-                          to be examined in order to ensure that the tax applied to it does
cation measures with regard to value added tax (OJ 1992                          not exceed the residual tax incorporated in the value of a similar
L 384, p. 47), the Court (Fifth Chamber), composed of: P. Jann,                  used vehicle already registered in the national territory.
President of the Chamber, S. von Bahr, A. La Pergola,
M. Wathelet (Rapporteur) and C.W.A. Timmermans, Judges;
C. Stix-Hackl, Advocate General; L. Hewlett, Principal Adminis-             4.   A tax such as that at issue in the main proceedings, described
trator, for the Registrar, has given a judgment on 19 September                  in national law as ‘value added tax’ on car tax, does not
2002, in which it has ruled:                                                     constitute ‘value added tax’ within the meaning of the Sixth
                                                                                 Council Directive 77/388/EEC of 17 May 1977 on the
1.    The first paragraph of Article 95 of the EC Treaty (now, after             harmonisation of the laws of the Member States relating to
      amendment, the first paragraph of Article 90 EC) allows a                  turnover taxes — Common system of value added tax: uniform
      Member State to apply to used vehicles imported from another               basis of assessment, in the version of Council Directive 92/
      Member State a system of taxation under which the taxable                  111/EEC of 14 December 1992 amending Directive 77/388/
      value is determined by reference to the customs value as defined           EEC and introducing simplification measures with regard to
      by Council Regulation (EEC) No 2913/92 of 12 October                       value added tax, and is compatible with Article 33 of that
      1992 establishing the Community Customs Code and Com-                      directive.