CELEX: C1999/226/22
Language: en
Date: 1999-08-07 00:00:00
Title: Case C-165/99: Action brought on 4 May 1999 by the Republic of Austria against the Commission of the European Communities

7.8.1999               EN                     Official Journal of the European Communities                                        C 226/13
Action brought on 4 May 1999 by the Portuguese                           — The applicable system of landing taxes at Portuguese
Republic against Commission of the European Communi-                          airports is not discriminatory or the ground of the
                                ties                                          nationality of users: the differentiation between domestic
                                                                              and international traffic does not infringe Article 12 EC (ex
                                                                              Article 6) given that, under Article 3 of Council Regulation
                         (Case C-163/99)                                      (EEC) No 2408/92 (1), Community air carriers have right
                                                                              of access to operate internal routes on an entirely equal
                                                                              footing with national operators. The 50 % reduction of the
                         (1999/C 226/21)                                      taxes on domestic flights affects, first and foremost,
                                                                              connections between continental Portugal and the Auton-
                                                                              omous Regions and between the Autonomous Regions,
An action against the Commission of the European Communi-                     which, because of their insularity, have no alternative to
ties was brought before the Court of Justice of the European                  air transport. Other domestic flights also benefit from such
Communities on 4 May 1999 by the Portuguese Republic,                         a reduction because they are short-haul flights whose fares
represented by Dr Luı́s Fernandes. Dr Maria Luı́sa Duarte and                 must be kept low. The validity of these reasons and their
Dr Fátima Viegas, acting as Agents with an address for service               compatibility with the Treaty is inextricably linked with
in Luxembourg at the Portuguese Embassy, 33 Allée Scheffer.                   the overriding objective of economic and social cohesion
                                                                              (see Article 3(k) EC (formerly 3(j))) and with the acknowl-
                                                                              edgement in the Treaty of the status as outermost regions
The applicant claims that the Court should:                                   of the Azores and Madeira (see Article 227 of the EC
                                                                              Treaty — now, after amendment, Art. 299(2) EC).
— Uphold the present action and, accordingly, annul the                  — The applicable system of landing taxes at Portuguese
     Commission’s decision of 10 February 1999 relating to a                  airports does not entail abuse of a dominant position: the
     proceeding under Article 90 of the EC Treaty (IV/35.703                  interpretation which the Commission puts forward in the
     — Portuguese airports).                                                  contested decision of Article 82 EC (ex Article 86), in
                                                                              conjunction with Article 86 EC (ex Article 90), is contrary
                                                                              to the principle of neutrality, as laid clown in Article 295
                                                                              EC (ex Article 222). Undertakings operating exclusive
Pleas in law and main arguments                                               concessions and public undertakings are otherwise pre-
                                                                              vented from resorting to business strategies, such as
                                                                              bulk-order discounts which are widely used by undertak-
(Anent procedure followed and measures adopted by the                         ings and are dictated by the economic requirement to
Commission)                                                                   show a profit.
— Breach of the obligation to provide reasons.
                                                                         (1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on access
                                                                             for Community air carriers to intra-Community air routes, OJ
— Breach of the principle of proportionality: since the                      1992 L 240, p. 8.
     distinction between domestic and international traffic for
     the purpose of levying airport taxes is provided for in the
     legislation applicable to most airports of the European
     Union, the most appropriate and least onerous measure
     would have been a directive. By imposing on a Member
     State the specific obligation of modifying unilaterally the
     amount or the methods for implementing airport landing
     taxes, the Commission disregarded the detrimental and
     serious effect of such a measure on the competitive
     conditions between air carriers on the Community market.
     Only a directive, which prescribes the same period for all
     the Member States for its implementation, can ensure the
     necessary harmonisation of national laws and that changes           Action brought on 4 May 1999 by the Republic of Austria
     will take place at the same time, as required by the rules of         against the Commission of the European Communities
     fair competition in the field of airport taxes and of air
     transport in general.
                                                                                                  (Case C-165/99)
— Abuse of process: a decision adopted under Article 86(3)
     (ex Article 90) only constitutes a fair and lawful alternative
     to infringement proceedings where such a decision is a                                       (1999/C 226/22)
     necessary, adequate and proportionate measure.
                                                                         An action against the Commission of the European Communi-
(Anent the lack of substantive grounds for the adoption of a             ties was brought before the Court of Justice of the European
decision finding an infringement of Article 86(1) EC (ex Article         Communities on 4 May 1999 by the Republic of Austria,
90) and Article 82 EC (ex Article 86))                                   represented by Dr Harald Dossi, of the Constitutional Service
 ---pagebreak--- C 226/14              EN                      Official Journal of the European Communities                                      7.8.1999
of the Federal Chancellor’s Office, acting as Agent, assisted by         — (In the alternative) Infringements of the law and inadequate
Dr Michael Schütte, Rechtsanwalt, with an address for service                statement of reasons in the application of Article 92(3) of
in Luxembourg al the office of Dr Josef Magerl, Ambassador,                  the EC Treaty.
at the Austrian Embassy, 3 Rue des Bains.
                                                                         (1) Not published in the Official Journal.
The applicant claims that the Court should:
— Annul Commission Decision K (1999) 325 endg. of
    3 February 1999 (1) on State aid granted by Austria in the
    form of an exemption from drinks tax on wine and other
    fermented drinks in the case of direct sale to the consumer
    at the place of production;                                          Appeal brought on 6 May 1999 by Clauni S.A., Lomagenais
                                                                         S.A., Jean-Marie Bissières and André Lompech against the
                                                                         order made on 9 March 1999 by the Fourth Chamber of
                                                                         the Court of First Instance of the European Communities
— Order the Commission to pay the costs.                                 in Case T-205/98 between Clauni S.A. and Others and the
                                                                                  Commission of the European Communities
                                                                                                 (Case C-170/99 P)
Pleas in law and main arguments
                                                                                                  (1999/C 226/23)
— Breach of essential procedural requirements: The Com-
    mission made incorrect findings of fact on a number of               An appeal against the order made on 9 March 1999 by the
    points of importance for the question of classifying the             Fourth Chamber of the Court of First Instance of the European
    rule as a general measure or as aid and in examining                 Communities in Case T-205/98 between Clauni S.A and
    whether there is significant distortion of competition and           Others and the Commission of the European Communities
    effect on trade.                                                     was brought before the Court of Justice of the European
                                                                         Communities on 6 May 1999 by Clauni S.A. Lomagenais S.A.,
                                                                         Jean-Marie Bissières and André Lompech, represented by
— Infringement of the EC Treaty as a result of incorrect                 Daniel Veyssière, of the Agen Bar, with an address for service
    application of Article 92(1): The exemption from drinks              in Luxembourg at the Chambers of Aloïse May 31 Grand-Rue.
    tax of on-the-spot sales of wine does not constitute an
    exception to the principle that sales of wine at the first           The appellants claim that the Court should:
    lever of trace are not subject to drinks tax. The tax
    exemption for on-the-spot sales is also justified from the           — set aside in its entirety the order declaring the action
    point of view of efficiency. If adverse effects on competition           inadmissible;
    occur as a result of general measures, the basis for
    eliminating those adverse effects is not the State aid
    procedure but, if necessary, a procedure for approximation           — allow the appellants’ claim for a rebate (1) or, more
    of laws.                                                                 precisely, their application for annulment of the implicit
                                                                             decision rejecting their claim for a rebate;
    It is not evident why an exemption from drinks tax which             — grant the application for annulment of the Commission’s
    directly benefits the final consumer should lead to at                   decision refusing to issue import certificates based on the
                                                                             quota for Poland, which is the corollary of that claim for a
    least indirect advantages for farmers. It depends on the
                                                                             rebate;
    individual case to what extent a wine-grower can obtain a
    higher remuneration because no drinks tax is charged. In
    any event, a higher remuneration is not attributable to the          — order the Commission to pay the costs.
    State even indirectly.
                                                                         Pleas in law and main arguments
— Inadequate statement of reasons, breach of Article 190 of
    the EC Treaty: The Commission failed to address the                  — Material error and contradiction in the grounds stated as
    arguments of the Republic of Austria adequately or in                    regards the chronology of the facts, giving rise to an
    some cases at all.                                                       erroneous computation of the procedural time-limits.
                                                                         — Distortion of the claim for a rebate and of the appellants’
    It erred in law by assuming that it did not have to apply                choice of procedure:
    the provisions or the common organisation of the market
    in wine; according to the case-law of the Court of Justice,              — the applicant, taking note of the implicit initial refusal
    however, the rules on State aid apply only secondarily                        of the Commission to allocate the goods in issue to the
    compared to the Provisions on the organisation of the                         Community quota, expressly requested the Com-
    market.                                                                       mission, in its rebate application of 20 December