CELEX: C2001/079/24
Language: en
Date: 2001-03-10 00:00:00
Title: Case C-501/00: Action brought on 29 December 2000 by the Kingdom of Spain against the Commission of the European Communities

10.3.2001               EN                      Official Journal of the European Communities                                         C 79/13
(a)   as regards admissibility: the European Parliament dis-               The applicant claims that the Court should:
      putes, first of all, the Court of First Instance’s characteris-
      ation of the letter of 19 November 1998 of the two
      Italian Vice-presidents of the European Parliament as the            —     annul the Commission’s decision of 31 October 2000
      ‘applicants’ application for membership’. According to                     declaring that the Spanish legislation on the exemption
      the Court of First Instance, that application for member-                  from corporation tax of expenditure and investments
      ship was made on behalf of the applicants. In the                          made abroad constitutes aid which is incompatible with
      opinion of the Parliament, that is an apoditic assertion,                  the common market and prohibited by Article 4(c) of the
      unsupported by reasons and having no basis in relevant                     ECSC Treaty;
      provisions of law, or in practice;
                                                                           —     order the defendant institution to pay the costs.
(b) again, as regards admissibility: the Parliament also dis-
     putes the Court of First Instance’s characterisation of the
     College of Quaestors’ letter of 4 February 1999 as a
     decision. Rather, it was merely a communication from
     the quaestors of the European Parliament for the purposes             Pleas in law and main arguments
     of providing information and as a courtesy, and, in any
     event, did no more than confirm the existing situation, of
                                                                           —     Infringement of the procedure laid down by law and
     which the Members of Parliament in question were
                                                                                 breach of the principles of legal certainty, of the right
     already perfectly well aware. Moreover, the informal and
                                                                                 to a fair hearing and of the protection of legitimate
     atypical requests the applicants made of the quaestors
                                                                                 expectations: by not adopting the decision within the
     place them outside the scope of every applicable rule and
                                                                                 time-limit prescribed by Article 6(5) of Decision
     every procedure (such as that provided for in Article
                                                                                 2496/96/ECSC, the Commission failed to observe the
     27(2) of the Rules Governing the Payment of Expenses
                                                                                 procedure laid down by the latter decision, on which the
     and Allowances to Members);
                                                                                 contested decision is based. Moreover, the contested
                                                                                 decision was adopted contrary to the legitimate expec-
(c)  lastly, as to the substance: the European Parliament                        tations of both the Member State to which it was
     maintains that the Court of First Instance erred in law                     addressed and the undertakings affected by it. Following
     when, reversing the burden of proof and thus committing                     the finalisation of the preparatory documents, the Com-
     a breach of procedure, it found that the Parliament had                     mission failed to give its definitive decision within the
     ‘not proved that the Members had acquired precise                           legal time-limit of three months; it allowed several years
     knowledge of the amending decision more than six                            to elapse following the expiry of the deadline for the
     months before they submitted their applications’, and                       adoption of a decision, and may thus reasonably be
     concluded that ‘the applicants submitted their appli-                       considered to have engendered a legitimate expectation
     cations for membership of the provisional pension                           that the measures in issue were not regarded as contrary
     scheme within the time-limit laid down in the amendment                     to the Treaty in the light of the investigation initiated in
     to Annex III’.                                                              1997.
                                                                           —     Infringement of Article 15 ECSC, on account of the
                                                                                 absence of a statement of reasons concerning the change
                                                                                 of criterion and the effect of the legislation on the
                                                                                 competitiveness of the national products exported.
                                                                           —     Misapplication of Article 4(c) of the ECSC Treaty: non-
                                                                                 existence of any aid or subsidy within the meaning of
Action brought on 29 December 2000 by the Kingdom of
                                                                                 that provision: automatically to assimilate the concept of
Spain against the Commission of the European Communi-
                                                                                 aid under that provision to aid under Article 87 EC
                                 ties
                                                                                 could give rise to inconsistency, inasmuch as the effects
                                                                                 produced by Article 87 EC are absolute and uncon-
                           (Case C-501/00)                                       ditional. The ECSC Treaty automatically prohibits aid by
                                                                                 virtue of the very fact of accession to the ECSC; it does
                                                                                 not require any assessment of the effects of such aid on
                            (2001/C 79/24)                                       competition, and does not regulate or deal with existing
                                                                                 grants of aid, since all aid, past and future, is covered by
                                                                                 the same prohibition. For that reason, it may be stated,
An action against the Commission of the European Communi-                        on the basis of the case-law of the Court and of the aids
ties was brought before the Court of Justice of the European                     code referred to, that the aid prohibited by Article 4(c) is
Communities on 29 December 2000 by the Kingdom of                                direct aid, whether or not specifically intended for ECSC
Spain, represented by Santiago Ortiz Vaamonde, Abogado del                       undertakings. Measures adopted by Member States which
Estado, acting as Agent, with an address for service in                          produce indirect effects or repercussions on competition
Luxembourg care of the Spanish Embassy, 4-6 Boulevard                            are subject to different rules, in particular Article 67 of
Emmanuel Servais.                                                                the ECSC Treaty.
 ---pagebreak--- C 79/14                EN                      Official Journal of the European Communities                                      10.3.2001
—     (In the event that the Court considers that the concept of          —     order the plaintiff to pay the costs of the proceedings,
      aid as contained in Article 4(c) of the ECSC Treaty is the                including those incurred by the Bundesverband der
      same as that in Article 87 EC:)                                           Arzneimittel-Importeure e.V. through its intervention,
                                                                                but excluding the costs of the intervention of the
      Non-existence of aid within the meaning of Article 87                     European Federation of Pharmaceutical Industries’ Associ-
      EC: it is characteristic of fiscal rules that they should be              ations, which the latter should bear itself.
      aimed at the achievement of general economic policy
      objectives. The Spanish fiscal rules in issue are designed
      to promote the internationalisation of undertakings. The
      deductibility for tax purposes does not, however, depend
      on the volume of exports; nor does it have any manifest
      effect on pricing. Its effect, like that of the other tax
      exemptions proposed, is limited to the actual amount of
      the sum assessed to tax. Nor can it simply be said that the         Pleas in law and main arguments
      taxable steelworks in Spain will be given an advantage
      over those in other countries, since it is necessary to take
      into account all factors which affect the actual taxation
      of those liable to tax. Even assuming that the measures             —     Failure to take full account of the facts as found by the
      applying in certain Member States are not analogous to                    Commission: The Court held that there was no agreement
      those under consideration in the present case, the actual                 because, as it found, Bayer did not carry out any
      tax burden on taxable steelworks in Spain may be said to                  monitoring of the final destination of the goods supplied
      be lower than that in other Member States.                                to the French and Spanish wholesalers. In fact, however,
                                                                                as is apparent from the documents submitted by the
                                                                                Commission, such controls did take place, even if in some
                                                                                cases only by way of spot checks.
                                                                          —     Erroneous assessment of the evidence owing to a disre-
Appeal brought on 5 January 2001 by the Bundesverband                           gard of the rules on the burden of proof: The Court of
der Arzneimittel-Importeure e.V. against the judgment                           First Instance wrongly perceived the burden of proof that
delivered on 26 October 2000 by the Fifth Chamber,                              an unlawful agreement came into being between Bayer
Extended Composition, of the Court of First Instance of                         and the wholesalers concerned in Spain and France as
the European Communities in Case T-41/96 between                                lying with the Commission. The wholesalers were aware
Bayer AG, supported by the European Federation of                               that Bayer’s intention was to impose quotas on quantities
Pharmaceutical Industries’ Associations and the Com-                            supplied with the aim of stopping exports. They were
mission of the European Communities, supported by the                           directly confronted with that demand for the imposition
     Bundesverband der Arzneimittel-Importeure e.V.                             of quotas. They then became involved in the imposition
                                                                                of quotas on supply quantities. There was no need for
                          (Case C-2/01 P)                                       any further proof by the Commission that that was done
                                                                                for the purpose of hindering exports. On a proper legal
                                                                                assessment, it follows from the undisputed facts that the
                          (2001/C 79/25)                                        evidence collected by the Commission is already prima
                                                                                facie sufficient to prove the existence of a corresponding
                                                                                agreement.
An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-41/96 (1)
between Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Commission                —     Misapplication of the concept of an agreement: For an
of the European Communities, supported by the Bundesver-                        appraisal of Article 81 EC, it is sufficient that the
band der Arzneimittel-Importeure e.V. was brought before the                    wholesalers became involved in the demands of Bayer
Court of Justice of the European Communities on 5 January                       that exports be restricted.
2001 by the Bundesverband der Arzneimittel-Importeure
e.V., represented by U. Zinsmeister and W.A. Rehmann,
Rechtsanwälte, with an address for service in Luxembourg.
                                                                                The mere fact that wholesalers initially refused to bend to
The appellant claims that the Court should:                                     Bayer’s policy and made attempts to circumvent it, does
                                                                                not, under the case-law of the Court of Justice, mean that
—     set aside the decision of the Court of First Instance of                  there was no concordance of wills. Rather, the latter can
      26 October 2000 in Case T-41/96 and dismiss the claim                     be inferred from the way in which the wholesalers
      by the plaintiff at first instance, or in the alternative refer           eventually behaved, which the Court established. The
      the matter back to the Court of First Instance;                           wholesalers accepted the quota measures.