CELEX: C1996/108/09
Language: en
Date: 1996-04-13 00:00:00
Title: Appeal brought on 19 February 1996 by Windpark Groothusen GmbH & Co. Betriebs KG against the judgment delivered on 13 December 1995 by the First Chamber of the Court of First Instance of the European Communities in Case T-109/94 between Windpark Groothusen GmbH & Co. Betriebs KG and the Commission of the European Communities (Case C-48/96 P)

13 . 4 . 96             | EN                   Official Journal of the European Communities                                  No C 108/5
— the disputed possibility for depreciation, afforded by                  Appeal brought on 19 February 1996 by Windpark
       Paragraph 82 ( f) of the Einkommensteuer-Durcb­                    Groothusen GmbH & Co. Betriebs KG against the
       fiihrungsverordnung ( income tax implementation                    judgment delivered on 13 December 1995 by the First
       regulation ), is consistent with the inherent logic of the         Chamber of the Court of First Instance of the European
       German tax system, and does not diverge fundamentally                   Communities in Case T-109/94 between Windpark
       from normal ( linear, degressive ) depreciation methods .                  Groothusen GmbH & Co . Betriebs KG and the
       In so far as the Commission considers that the tax                           Commission of the European Communities
       systems distort the conditions of competition in the                                       ( Case C-48/96 P )
       common market, the relevant legislative provisions of
       the Member States should have been assimilated in                                             ( 96/C 108/09 )
       accordance with Article 101 of the EC Treaty. In the
       final analysis, singling out individual elements of tax law        An appeal against the judgment delivered on 13 December
       undermines the national tax system and amounts to a                1995 by the First Chamber of the Court of First Instance of
       disregard of the national fiscal sovereignty retained by           the European Communities in Case T-109/94 between
       the Member States,                                                 Windpark Groothusen GmbH & Co . Betriebs KG and the
                                                                          Commission of the European Communities (') was brought
— even if it were permissible to single out that individual               before the Court of Justice of the European Communities on
       national tax provision from the non-harmonized rules               19 February 1996 by Windpark Groothusen GmbH & Co .
       on the taxation of undertakings, the Commission should             Betriebs KG, of Groothusen-Krummhorn ( Germany )
       not have classified Paragraph 82 ( f) of the Ein­                  represented by Detlef Schumacher and Benno Grunewald,
       kommensteuer-Durcbfuhrungsverordnung as aid . The                  Rechtsanwàlte, Heidelberger StraEe 7, D-28203 Bremen .
       possibility for depreciation afforded by Paragraph 82 ( f)
       of the Einkommensteuer-Durchfiihrungsverordnung
       does not give rise to any transfer at the State's expense ( in     The appellant claims that the Court should :
       the form of a shortfall in tax revenue ); the fiscal effects of
       degressive depreciation — to which the Commission                  1 , set aside the contested judgment of 13 December
       does not object, and which is feasible in all sectors - and              1995 ;
       of depreciation pursuant to Paragraph 82 ( f) of the
       Einkommensteuer-Durchfubrungsverordnung are on                     2 , annul the decisions of the Commission refusing to grant
       the whole equivalent. Depreciation pursuant to
                                                                               the appellant aid pursuant to the Thermie Regulation
       Paragraph 82 ( f) of the Einkommensteuer-Durch­                          ( notified by communication of 13 January 1994 from
       fubrungsverordnung does not increase the volume of                       the Energy Directorate-General supplementing the
       depreciation applied to the assets of undertakings; it
                                                                                communication of 5 August 1993 from the Energy
       does not result, over the service life of an aircraft, or the
                                                                                Directorate-General );
       period during which it is retained by the undertaking, in
       any reduction of the tax due , nor does it afford the
        undertaking — in relation to the service life or period of         3 , order the respondent to adopt a decision in favour of the
        retention of the asset — any interest advantage arising                 appellant, with due regard to the interpretation of the
        from the depreciation .                                                 law undertaken by the Court of Justice, providing for
                                                                                the grant of aid in a sum not exceeding ECU
        Even if it were in fact the case that aid to a specific sector          918 028 ;
        is involved, there would in any event be no question of
        any distortion of competition, since the German rules on           4 , order the respondent to pay the costs of the proceedings
        depreciation are less favourable than those applied in                  at first instance and of the appeal .
        numerous other Member States of the Community, and
        Germany has, in comparative terms , one of the highest
        tax burdens,                                                       Pleas in law and main arguments adduced in support:
— the contested decision does not contain a sufficient                     — infringement of the right to full legal protection,
        statement of reasons; in particular, the Commission does
        not attach sufficient weight to the results of the                 — infringement of the fifth paragraph of Article 173 of the
        investigations submitted to it, despite the fact that one of            EC Treaty: that provision does not require a person who
        them was commissioned by the defendant itself,                          is directly and individually concerned by a decision to try
                                                                                to ascertain the nature of the decision and the reasons on
— ( in the alternative ) Article 92 ( 3 ) (c ) of the EC Treaty has             which it is based . On the contrary, the legal aspects are
        wrongly been left out of consideration . The special                    complied with where , at the applicant's request, the
        depreciation at issue promotes the protection of the                     decision and the reasons on which it is based are
        environment ( acquisition of new aircraft which                         communicated,
        experience has shown to be quieter and more economic
        to use ).
                                                                           — infringement of the rule requiring a statement of reasons
                                                                                 to be given,
 ( 1 ) Only civil aviation undertakings are involved .
                                                                           — infringement of the fundamental legal rules concerning
                                                                                 the right to a fair hearing,
 ---pagebreak--- No C 108/6              EN                    Official Journal of the European Communities                                           13 . 4 . 96
— misuse of discretionary powers : the fact that the                     Pleas in law and main arguments adduced in support:
    European Commission adopts, in its entirety, a decision
    made by the Thermie Committee does not mean that                     — The appellant maintains that, by rigidly linking the
    that decision is free from errors committed in the                          judgment in Baiwir (2 ) to the applicability of Article 32
    exercise of discretionary powers . Moreover, the                            of the Staff Regulations, relating to recruitment, or
    judgment fails to recognize that that committee is not                      Article 46 , relating to promotion, the Court of First
    composed of independent technical experts ;                                 Instance arrived at an erroneous conclusion . The
                                                                                appellant maintains that the principle emerging from the
— infringement of the third paragraph of Article 175 of the                     judgment in question is that of equality of treatment
    EC Treaty and of the fourth paragraph of Article 173                        between successful internal and external candidates as
    and Article 176 thereof.                                                    regards taking into account the professional experience
                                                                                acquired by them prior to their entry into service .
(') OJ No C 31 , 3 . 2 . 1996 , p . 18 .
                                                                         — The Court of First Instance wrongly applied
                                                                                Article 87 ( 3 ) of its Rules of Procedure; the appellant was
                                                                                forced to bring legal proceedings by reason of his
                                                                                inability to obtain from the defendant any convincing
                                                                                explanations concerning his regrading .
Appeal brought on 20 February 1996 by Nicolaos Progoulis
against the order made on 15 December 1995 by the Fifth                  (') OJ No C 64, 2 . 3 . 1996 .
Chamber of the Court of First Instance of the European                   ( 2 ) Judgment of 28 . 9 . 1993 in Case T-l 03/92, OJ No C 287,
    Communities in Case T-131 /95 between Nicolaos                             23 . 10 . 1993 , p . 10 .
      Progoulis and the Commission of the European
                           Communities
                         Case C-49/96 P
                          ( 96/C 108/10 )
                                                                         Reference for a preliminary ruling by the Vergabe­
An appeal against the order made on 15 December 1995 by                  iiberwachungsausschul? des Bundes ( Public Procurement
the Fifth Chamber of the Court of First Instance of the                  Awards Supervisory Board of the Federal Republic) First
European Communities in                  Case T-131 /95   between        Chamber, of 5 February 1996 in public procurement
Nicolaos Progoulis and the Commission of the European                    awards supervisory proceedings between Dorsch Consult
Communities was brought before the Court of Justice of the                         Ingenieurgesellschaft mbH, the applicant, and
European Communities on 20 February 19 96 by Nicolaos                            Bundesbaugesellschaft Berlin mbH, the awarding
Progoulis , represented by Konstantinos Adamantopoulos                                                        authority
and Vassilios Akritidis , of the Athens Bar, with an address                                             ( Case C-54/96 )
for service in Luxembourg at the Chambers of Arsène
                                                                                                           ( 96/C 108/11 )
Kronshagen, 12 Boulevard de la Foire .
                                                                         Reference has been made to the Court of Justice of the
The appellant claims that the Court should :
                                                                        European Communities by order of the Vergabe­
1,  set aside the order of the Court of First Instance of the            uberwachungsausschutë des Bundes ( First Chamber ) of 5
    European Communities of 15 December 1995 in Case                     February 1996 , which was received at the Court Registry on
    T-131 /95 ('), in so far as, first, it dismisses his                21 February 1996 , for a preliminary ruling in the public
    application as inadmissible and, second , it orders him to          procurement awards supervisory proceedings between
    pay all of the costs ;                                              Dorsch Consult Ingenieurgesellschaft mbH, the applicant,
                                                                         and Bundesbaugesellschaft Berlin mbH, the awarding
2 , annul the decision of the defendant, addressed to the               authority, on the following question :
    appellant by letter of 20 March 1995 , rejecting his
    application to be regraded in step 2 of grade B1 with                is Article 41 of Council Directive 92/50/EEC of 18 June
    retroactive effect from 1 March 1983 and for the                     1 992 ( 1 ) to be interpreted to the effect that after
    financial consequences of the regrading applied for to be            30 June 1993 the bodies set up by the Member States in
                                                                         accordance         with      Council       Directive 89/665/EEC      of
    taken into account and calculated retroactively from
    1 March 1983 , together with compound legal interest at              21 December 1989 to review decisions taken by the
    the annual rate of 10% ;                                            contracting authorities as regards contract award
                                                                         procedures falling within the scope of Directives
3 , adopt measures of organization of procedure on the                   71 /305/EEC and 77/62/EEC are also competent to review
    basis of Article 45 of the Rules of Procedure of the Court           decisions taken in procedures for the award of public service
    of Justice of the European Communities, in accordance                contracts within the meaning of Directive 92/50/EEC on the
    with the application made by the appellant in                        grounds that such decisions have allegedly infringed
    paragraph 18 of the appeal ;                                         Community law in the field of public procurement or
                                                                         national rules implementing that law ?
4 , order the defendant to pay the costs of the appeal
    together with all of the costs incurred in Case T-131 /95            (>) OJ 1992 L 209 , p . 1 .
    before the Court of First Instance of the European
    Communities .