CELEX: C1995/208/15
Language: en
Date: 1995-08-12 00:00:00
Title: Action brought on 1 June 1995 by Kingdom of Spain against the Commission of the European Communities (Case C-169/95)

12 . 8 . 95                        EN                      Official Journal of the European Communities                                  No C 208/7
         which conflict with those of Community law in cases                           Coordination, and by Gloria Calvo Diaz, Abogado del
         where , if direct effect were given to the latter, the                        Estado, acting as Agents, with an address for service in
         position of the individual would be impaired ?                                Luxembourg at the Spanish Embassy, 4—6 Boulevard E.
                                                                                       Servais .
 ( l ) ' 8 . In the court's opinion, there is reason to doubt whether the
              provisions mentioned at point 7 ( 1 ) comply with the                    The applicant claims that the Court should :
              Community Directives :
              ( a ) by virtue of the rules complained of, the system
                     introduced by Legislative Decree No 1 33/ 1 992 ( express ,       — uphold the application and annul the contested decision,
                     prior and conditional authorization for a fixed term )                and
                     does not apply to the majority of existing plants;
              ( b ) all the Community Directives which Legislative Decree
                     No 133/1992 purports to implement ( and in respect of             — order the defendant institution to pay the costs .
                     which the time limit for implementation has long since
                     elapsed ) appear instead to require — clearly and
                     indisputably — express, prior and conditional                     Pleas in law and main arguments adduced in support:
                     authorization for a fixed term in respect of all discharges
                     falling within their purview. In that connection ,
                     consideration should be given to the following                    — Infringement of the Treaty or of any rule of law relating
                     provisions by way of example :                                       to its application : infringement of Article 92 ( 3 ) ( a ) of the
                     ( bl ) Article 1 ( 2 ) ( d ) of Directive 76/464/EEC , which         EC Treaty: the fact that an aid cannot be considered
                            defines the concept of 'discharge ' without drawing           automatically to be compatible as regional aid because it
                            any distinction between new and existing                      is ad hoc and does not form part of a programme of
                            discharges ; Article 3 of that Directive, which               regional aid does not preclude its being classified as
                            provides that 'all discharges . . . which are liable to       compatible regional aid . This case concerns aid granted
                            contain ' one of the substances covered by the                by the Spanish public authorities to an undertaking
                            Directive ( and consequently by Legislative Decree
                            No 133/1992 ) are subject to express , prior and              which intends to locate in a Spanish region classified as a
                            conditional authorization for a fixed term;                   less-favoured area . It is aid for basic investment whose
                     ( b2 ) Article 3 of Directive 83/51 3/EEC , concerning               overall intensity is well below the limit laid down in the
                            cadmium discharges, which provides that all                   Commission's Decision of 28 May 1987 regarding the
                            discharges containing cadmium are subject to                  general regional aid scheme in Spain for the province of
                            express, prior and conditional authorization for a            Teruel ('). Although there was no general regional aid
                            fixed term, with no distinction being drawn                   scheme for the Autonomous Community of Aragon duly
                            between existing discharges and new discharges                authorized by the Commission, the aid granted to Piezas
                            ( the latter being distinguished only for the separate        y Rodajes SA ( PYRSA ) observed the conditions laid
                            purpose referred to in Article 4 ( 1 )).'
(*) '7. It is the court's view that the following provisions of                           down in Decree 80/1988 of the Diputacion General de
              Legislative Decree No 133/1992 merit consideration :                        Aragon ( Government of the Autonomous Community
             — Article 7(1 ) with respect only to the words 'containing                   of Aragon ) on economic aid to small and medium-sized
                    the dangerous substances for which emission thresholds                enterprises in the Autonomous Community of Aragon
                    are laid down in Annex B ',                                           which the Commission adopted on 29 January 1 992 ( 2 ).
             — Article 7 ( 7 ).                                                           Therefore to draw the automatic conclusion that it is
                    The provisions concerned are precisely those which, as                incompatible with the Treaty would entail an
                    explained above at point 5 , confine the current                      irreconcilable contradiction . On the contrary, the aid
                    applicability of Legislative Decree No 133/1992 to a                  should be considered to meet all the conditions in order
                    very small proportion of the existing plants .'
( 2 ) OJ No L 129 , 18 . 5 . 1976 , p. 23 .
                                                                                          to be considered compatible, particularly since the
(-') OJ No L 291 , 24 . 10 . 1983 , p . 1 .                                               provisions underlying it met the criteria which enabled it
                                                                                          to be authorized subsequently as a general regional aid
                                                                                          scheme .
                                                                                      — Error in the assessment of facts : the contested decision
                                                                                          relies on mere 'hypotheses ' extrapolated from
                                                                                          information which not only is unrepresentative but also
                                                                                          refers to years subsequent to those which were taken
                                                                                          into account when granting the aid ( 1990 et seq., instead
Action brought on 1 June 1995 by Kingdom of Spain against                                 of 1988 and 1989 ), even though the Commission itself
            the Commission of the European Communities                                    pointed out the strong increase in demand within the
                                     ( Case C-169/95 )                                    Community in the sector concerned in the years which
                                       ( 95/C 208/ 15 )                                   were relevant to the granting of aid .
                                                                                      — In the alternative, the Kingdom of Spain considers that
An action against the Commission of the European                                          there are exceptional circumstances which could justify
Communities was brought before the Court of Justice of the                                the recipient undertaking's objection to repaying the aid .
European Communities on 1 June 1995 by the Kingdom of                                     The recipient undertaking acted on the basis that it
Spain, represented by Alberto Jose Navarro Gonzalez,                                      considered the aid to be compatible regional aid to be
Director General for Community Legal and Institutional                                    notified a posteriori to the Commission, in accordance
 ---pagebreak--- No C 208/8              EN                   Official Journal of the European Communities                                               12 . 8 . 95
      with the rules applying to such aid . Furthermore, by             20 December 1963 to claim that he has preserved his
      reason of the first decision, NN 12/91 , PYRSA was in             entitlement to unemployment benefits but where he
      receipt of aid which was considered compatible by the             demonstrates that, on the date of his application, he satisfied
      Commission when it reviewed it a posteriori. The action           the conditions regarding qualifying periods for acquisition
      for annulment brought in Case C- 198/91 Cook v.                   of entitlement to those benefits ?
      Commission had no suspensory effect. In these
      circumstances, it is perfectly logical that the recipient
                                                                        (') OJ No L 149 , 5 . 7 . 1971 , p . 2 . English Special Edition , 1971(11 ),
      undertaking should have based its legitimate                           p . 416 .
      expectations on the compatibility of that aid, bearing in
      mind , moreover, that the Court, in its judgment in Cook,
      did not even state directly that the aid was incompatible
      but rather that it was illegal by reason of the failure to
      initiate the procedure provided for in Article 93 ( 2 ) of
      the Treaty . Thus, it was not until March 1994 that
      PYRSA found itself in receipt of aid which the
      Commission itself had initially declared compatible and           Reference for a preliminary ruling from the
      which was now declared incompatible .                             Bundesverwaltungsgericht by order of that court of 1 1 April
                                                                        1995 in the case of Recep Tetik v. Land Berlin, intervener:
                                                                             Oberbundesanwalt beim Bundesverwaltungsgericht
— In any event, interest should be calculated solely from
      the date of the Commission's decision declaring the aid                                      ( Case C-171/95 )
      previously granted to PYRSA incompatible, that is, from                                        ( 95/C 208/17 )
      14 March 1995 .
                                                                        Reference has been made to the Court of Justice of the
(M OJ No C 251 , 27. 9 . 1988 , p . 4 .                                 European Communities by an order of the
( 2 ) OJ No C 326 , 11 . 11 . 1992 , p . 5 .                            Bundesverwaltungsgericht,                 Erster      Senat        ( Federal
                                                                        Administrative Court, First Senate ) of 11 April 1995 ,
                                                                        which was received at the Court Registry on 7 June 1995 ,
                                                                        for a preliminary ruling in the case of Recep Tetik
                                                                        v. Land Berlin, intervener : Oberbundesanwalt beim Bundes­
                                                                        verwaltungsgericht, on the following questions :
                                                                         1 . is a Turkish seaman, who was employed from 1980 to
                                                                              1988 on maritime vessels of a Member State, a member
                                                                              of the legitimate labour force of that Member State and
                                                                              legally employed there within the meaning of
Reference for a preliminary ruling from the Cour de                           Article 6 ( 1 ) of Decision No 1 /80 of the EEC/Turkey
Cassation, Belgium (Third Chamber), by judgment of that                       Association Council on the development of the
court of 15 May 1995 in the case of Office National de                        Association where his employment relationship was
                   l'Emploi v. Calogero Spataro                               governed by national law and he paid income tax and
                         ( Case C-l 70/95 )                                   was affiliated to the social security system in that
                                                                              Member State, but the work permit issued to him was
                           ( 95/C 208/16 )
                                                                              limited to working in shipping and did not authorize
                                                                              him to take up residence on shore ?
 Reference has been made to the Court of Justice of the                       Is it relevant in that connection that under German law
European Communities by a judgment of the Cour de                             that activity is not subject to the requirement of a work
 Cassation ( Court of Cassation ), Belgium ( Third Chamber )                  permit and that, to some extent, special statutory
 of 15 May 1995 , which was received at the Court Registry                    arrangements apply to seamen from the point of view of
 on 6 June 1995 , for a preliminary ruling in the case of Office              employment law and social security law ?
 National de l'Emploi v. Calogero Spataro on the following
 question:
                                                                         2 . If question 1 is answered in the affirmative :
 Must Article 69 (4 ) of Regulation ( EEC ) No 1408/71 of                     does a Turkish seaman lose his right to be granted a
 14 June 1971 on the application of social security schemes                   residence permit if he terminates his employment
 to employed persons, to self-employed persons and to                         relationship voluntarily, and not, for example, on health
 members of their families moving within the                                  grounds , and 11 days later, after the expiry of his
 Community ( ] ), in the version contained in Regulation                      residence permit, applies for a residence permit for work
 ( EEC ) No 2001 /83 of 2 June 1983 , be construed in the sense               on shore and after the refusal to grant the permit is
 that the requirement that an unemployed person should                         unemployed ?
 have been employed for at least three months since his
 return to Belgium is applicable where the unemployed
 person does not rely on Article 123 of the Royal Decree of