CELEX: C1996/077/11
Language: en
Date: 1996-03-16 00:00:00
Title: Action brought on 21 December 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-399/95)

16 . 3 . 96            EN                   Official Journal of the European Communities                                         No C 77/5
 1 . In a case of temporary importation of certain means of             European Communities in Case T-302/94 between
      transport for private use within the Community, within            Dimitrios Coussios and the Commission of the European
      the meaning of Article 3 of Council Directive                     Communities was brought before the Court of Justice of the
      83/182/EEC ( 1 ) of 28 March 1983 , is the exemption              European Communities on 18 December 1995 by Dimitrios
      from taxes granted for a single private vehicle or for            Coussios, represented by Georges Sakellaropoulos and
      more than one ? Does the above Directive in fact                  residing at 3rd September Street, Athens .
      introduce a distinction between the number of private
      vehicles that it is possible to import temporarily on a           The appellant claims that the Court should:
      tax-exempt basis according to whether they are
      intended for private use or business use ?
                                                                        — declare the appeal admissible,
2. Is a specific obligation laid down in the Directive to the           — set aside jhe order of the Court of First Instance of
      effect that the competent Greek authorities should not                  11 October 1995 ('),
      restrict by legislation the parallel or simultaneous
      temporary importation tax-exempt of more than one                 — declare the application lodged on 28 September 1994 ( in
      private vehicle for private use by the same person ? Is it              Case T-302/94 ( 2 ) admissible,
      possible for an individual to rely on the provisions of
      Articles 3 and 9 of Directive 83/182/EEC against the
      authorities before a national court, claiming that the           — order the Commission to pay all of the costs .
      rules contained in a provision of law are incompatible
      with those Articles ?                                             Pleas in law and main arguments:
3 . Is it compatible with the purpose and terms of the                  Infringement of Community law:
      Directive in question for the national legislature to
      provide that in a case of infringement of certain                — as regards the plea concerning the principle of sound
      provisions of a ministerial decision ( such as Article 8 ( 4 ),         administration :         the    Court  of First Instance had
      which does not allow the importation of a second means                  previously held that plea to be well founded in Case
      of transport by the same person ) adopted in order to                   T-68/92 ( 3 ), and could not legitimately consider that the
      bring national law into line with the provisions of the                 award to the applicant of ECU 2 000 extinguished the
      Directive, the applicable duties and other taxes, as well               plea ,
      as additional duty of the same amount, are payable
      immediately, in as much as it is shown that the                  — as regards the application of the principle of
      importation of a private vehicle is temporary and not                   proportionality,
      definitive ?
                                                                       — as regards the applicant's legal interest in bringing
4 . Is it compatible with the Community principle of                          proceedings : although the applicant's name did not
      proportionality for it to be provided that in the above                 appear on the list of suitable candidates in the open
      case additional duties equal to 100 % of the applicable                 competition, he at all times reserved his position
      duties and other taxes should be levied, regardless of the             concerning his participation in that competition.
      period that the second private vehicle remained in
      Greece ?                                                         ( ] ) Order of 11 October 1995 in Case T-302/94 ( OJ No C 353 ,
                                                                             9 . 12 . 1995 , p . 14 ).
                                                                       ( 2 ) OJ No C 351 , 10 . 12 . 1994, p . 14 .
(') Council Directive 83/182/EEC of 28 March 1983 on tax
                                                                       ( 3 ) Judgment of 23 February 1994 ( OJ No C 90, 26 . 3 . 1994 ,
     exemptions within the Community for certain means of                    p. 15 ).
     transport temporarily imported into one Member State from
     another ( OJ No L 105 , 1983 , p. 59 ).
                                                                       Action brought on 21 December 1995 by the Federal
Appeal brought on 18 December 1995 by Dimitrios                        Republic of Germany against the Commission of the
Coussios against the order made on 11 October 1995 by the                                        European Communities
Fourth Chamber of the Court of First Instance of the                                                   ( Case C-3 99/95 )
European Communities in Case T-302/94 between
                                                                                                          ( 96/C 77/11 )
Dimitrios Coussios and the Commission of the European
                          Communities
                       ( Case C-397/95 P)                              An action against the Commission of the European
                                                                       Communities was brought before the Court of Justice of the
                           ( 96/C 77/ 10 )
                                                                       European Communities on 21 December 1995 by the
                                                                       Federal Republic of Germany, represented by Dr Ernst
An appeal against the order made on 11 October 1995 by                 Roder, Ministerialrat, Federal Ministry of Economic
the Fourth Chamber of the Court of First Instance of the               Affairs, D-53107 Bonn.
 ---pagebreak--- No C 77/6               EN                Official Journal of the European Communities                                        16 . 3 . 96
The applicant claims that the Court should :                               intended to be set off subsequently, in the course of the
                                                                           sale of the NMH shares to Max Aicher, against the
1 . declare void the Commission's decision of 18 October                   planned loss compensation by the State of Bavaria . Since
    1995 concerning a State aid by the Federal State of                    the privatization of the NMH shares provided for in
    Bavaria     to    the  EGKS-Stahlunternehmen           Neue            accordance with the contracts between the State of
    Maxhiitte Stahlwerke GmbH, Sulzbach-Rosenberg —                        Bavaria and Aicher is economically plausible, the grant
    K ( 95 ) 2828 final; and                                               of the disputed loans to NMH is also economically
                                                                           sensible . The waiver by the State of Bavaria of the loan in
2 . order the defendant to pay the costs .                                 the amount of DM 48 895 million was ultimately an
                                                                           integral part of the measures to privatize NMH .
Pleas in law and main arguments:                                           Logically, the loan transactions between the State of
                                                                           Bavaria and NMH cannot be characterized as aid, if the
— Breach of essential procedural requirements ( obligation                 assumption of losses by the State of Bavaria upon the
    under Article 15 of the ECSC Treaty to state the reasons               privatization of its NMH shares is unobjectionable
    on which a decision is based ):                                        under State aids law .
    — overall basis of the decision is the fact that the                   The Commission also breaches Article 83 of the ECSC
        shareholder loans made by the Federal State of                     Treaty, if from the outset it denies the State of Bavaria
        Bavaria are alleged to be in the nature of capital                 the right to sell a loss-making subsidiary and to assume
        replacements,                                                      part of its losses when so doing. That provision
                                                                           guarantees the right of public authorities to take part in
    — sweeping assertion that repayment could not be, and                  economic life and prohibits discrimination against the
        was not, expected to be made,                                      economic activity of public undertakings .
    — blanket refusal to refrain from adopting the                   — Breach of the principle of good faith : The Commission
        contested decision on the ground that it would                     should have delayed the contested decision until it had
        anticipate the outcome of Cases C-158/95 (') and                   been established whether the plan for the privatization
        T-129/95 ( 2 ).                                                    of the shares held by the State of Bavaria was permissible
                                                                           under Community law ( pending Cases C-158/95 and
— Incorrect application of Articles 4 (c ) and 83 of the                   T-129/95 ).
    ECSC Treaty: The loans granted by the State of Bavaria
    are not to be classified as aids, but as an act of a             (M OJ No C 362 , 1995 , p . 57 .
    shareholder which a private investor in a comparable             ( 2 ) OJ No C 229 , 1995 , p . 21 .
    situation would also reasonably have performed. The
    fact that there was and is a real prospect of the loan being
    repaid is shown by the fact that the productive situation
    of the company has stabilized and profits can be
    expected in the future . Although the State of Bavaria
    nevertheless subsequently decided not to demand                  Action brought on 5 January 1996 by the Commission of
    repayment of the loan, that was exclusively in order to          the European Communities against the Kingdom of the
    set it off, upon the sale of its shares, against the loss                                      Netherlands
    compensation by the State of Bavaria provided for in the                                     ( Case C-3/96
    privatization agreements. The set-off of the loans upon
                                                                                                   ( 96/C 77/ 12 )
    the sale of the shares was wholly appropriate and
    reasonable in economic terms, because it enabled the
    State of Bavaria to reorganize its policy towards                An action against the Kingdom of the Netherlands was
    combines and to protect its entrepreneurial image .              brought before the Court of Justice of the European
                                                                     Communities on 5 January 1996 by the Commission of the
    In any event, having regard to the principle of                  European Communities, represented by W. Wils, of its Legal
    proportionality, the Commission should not have                  Service, acting as Agent, with an address for service in
    claimed that the loan be repaid, but only that it be             Luxembourg at the office of C. Gomez de la Cruz, of its
    modified in such a way as to require repayment                   Legal Service, Wagner Centre, Kirchberg.
    irrespective of whether profits were expected.
                                                                     The Commission claims that the Court should :
    The Commission wrongly compares the conduct of the
    State of Bavaria with that of the private, minority               1 . declare that, by not designating sufficient special
    shareholders in assuming that the latter find themselves                protection areas within the meaning of Article 4 ( 1 ) of
    in a comparable situation . Their financial possibilities,              Council Directive 79/409/EEC of 2 April 1979 on the
    interests and entrepreneurial aims were, however,                       conservation of wild birds, the Kingdom of the
    different; in particular, they had no influence over the                Netherlands has failed to fulfil its obligations under that
    future business orientation of the Maxhiitte group. The                 Directive and under Articles 5 and 1 89 of the EC Treaty;
    loans granted by the State of Bavaria were in any event                 and
    sensible in entrepreneurial terms, because they were
    intended to enable the privatization of Neue Maxhiitte            2 . order the Kingdom of the Netherlands to pay the
    ( NMH ). The claims arising out of the loans granted were               costs .