CELEX: C2003/101/34
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-73/03: Action brought on 19 February 2003 by the Kingdom of Spain against the Commission of the European Communities

C 101/20                EN                         Official Journal of the European Union                                          26.4.2003
Action brought on 14 February 2003 by the Commission                             —     Articles 14 to 16: there are no provisions dealing
of the European Communities against the Federal Repub-                                 with access to the system. The reference to prohib-
                           lic of Germany                                              itions under competition law is not sufficient as
                                                                                       these do not contain any rules on access;
                           (Case C-64/03)                                        —     Articles 12 and 13: there are no rules under the laws
                                                                                       specifically governing natural gas which deal with
                                                                                       the unbundling of the accounts of integrated natural
                          (2003/C 101/33)                                              gas undertakings;
                                                                           —     The Federal Republic of Germany has failed adequately to
                                                                                 transpose:
An action against the Federal Republic of Germany was                            —     Article 2: defining provisions contained in a measure
brought before the Court of Justice of the European Communi-                           of Community law must, inasmuch as they are —
ties on 14 February 2003 by the Commission of the European                             as here — necessary for the proper application of
Communities, represented by Jürgen Grunwald, Legal Adviser                             the Community provisions by national bodies, be
to the Commission of the European Communities, and Hans                                correctly transposed in national law;
Støvlbæk, of the Legal Service of the Commission of the
European Communities, acting as Agents, with an address for
                                                                                 —     Articles 7(2) and 10(2): the general competition
service in Luxembourg at the office of Carlos Gómez de la
                                                                                       rules under national law apply only to undertakings
Cruz, of the European Commission’s Legal Service, Wagner
                                                                                       in a dominant market position and for that reason
Centre C 254, Kirchberg.
                                                                                       do not constitute an adequate transposition of the
                                                                                       prohibition of discrimination;
The applicant claims that the Court should:                                      —     Article 15(1) in conjunction with Article 17(1):
                                                                                       unlike the position in the electricity sector, German
1.    declare that, by failing to bring into force the laws,                           law does not provide for an obligation to state
                                                                                       reasons in the event of refusal to grant access to the
      regulations and administrative provisions necessary to
      comply with Directive 98/30/EC ( 1) of the European                              system;
      Parliament and of the Council of 22 June 1998 concern-
      ing common rules for the internal market in natural gas,                   —     Article 18: no criteria governing the designation of
      the Federal Republic of Germany has failed to fulfil its                         eligible customers have been published or notified
      obligations under Article 29 of that directive;                                  to the Commission;
                                                                                 —     Article 21(2): the arbitration authority provided for
2.    order the Federal Republic of Germany to pay the costs                           in Article 21(2) has not been designated.
      of the proceedings.
                                                                           (1 ) OJ L 204 of 21.7.1998, p. 1.
Pleas in law and main arguments
Although the period for transposition of Directive 98/30/EC
expired on 10 August 2000, the Federal Republic of Germany
has thus far failed to transpose at all or failed to transpose
adequately a number of provisions of that directive.                       Action brought on 19 February 2003 by the Kingdom of
                                                                           Spain against the Commission of the European Communi-
                                                                                                             ties
—     The Federal Republic of Germany has failed totally to
      transpose:
                                                                                                      (Case C-73/03)
      —     Article 5 in conjunction with Articles 7(3) and 10(3):
            it is clear that there have been no notifiable and                                       (2003/C 101/34)
            technically verifiable ‘technical rules establishing
            the minimum technical design and operational
            requirements’ for the ‘connection to the system of
            LNG facilities, storage facilities, other transmission         An action against the Commission of the European Communi-
            or distribution systems, and direct lines’. At any rate,       ties was brought before the Court of Justice of the European
            no such technical rules have been notified to the              Communities on 19 February 2003 by the Kingdom of Spain,
            Commission, nor is the Commission aware of any                 represented by S. Ortiz Vaamonde, Abogado del Estado, with
            such rules;                                                    an address for service in Luxembourg.
 ---pagebreak--- 26.4.2003               EN                         Official Journal of the European Union                                          C 101/21
The applicant claims that the Court should:                                       much larger amount, against which the Commission had
                                                                                  publicly advised but which was adopted in other Member
                                                                                  States such as France, Germany or Italy. It can in no
—     annul the Commission’s decision of 11 December                              way be maintained that Spanish operators enjoyed an
      2002 ( 1), in so far as it finds that the subsidising of loans              economic advantage to which those of other Member
      and guarantees for owners of agricultural holdings and                      States did not have access.
      the extension of tax benefits to the transfer of agricultural
      land and holdings constitute State aid incompatible with
      the Treaty;                                                          —      (In the alternative) If State aid is found to exist, it is
                                                                                  compatible with the common market in the light of
                                                                                  Article 87(2)(b) EC: neither the objective nor the result of
—     order the Commission to pay the costs.                                      the alleged aid was to cover loss suffered by the farmer:
                                                                                  the intention was to make it easier for him to obtain a
                                                                                  loan from financial institutions so that the loans would
                                                                                  make up for the lack of liquidity brought about by the
                                                                                  disproportionate increase in costs caused by the steep
                                                                                  rises in fuel prices. If, following the Commission’s rec-
                                                                                  ommendation not to reduce the special tax on fuel oils
Pleas in law and main arguments                                                   or value added tax, no alternative measures were adopted,
                                                                                  Spanish farmers would become less competitive in their
                                                                                  trade by comparison with States which implemented
                                                                                  permitted, although not recommended, tax reductions.
(The extension of certain tax benefits to transfers of land)               —      (In the alternative) Compatibility of the measures in the
                                                                                  light of Article 87(3)(c) EC.
—     This does not constitute State aid since certain undertak-
      ings or the production of certain goods are not specifically
      favoured: the measure entails a lower tax burden for the             (1 ) Relating to measures taken by Spain to support agriculture
      seller of the land and has an impact on the owner (farmer)                following the fuel price increase.
      purchasing land: not as to the amount but as to the
      greater availability of land for sale because of the lower
      capital gains tax charge for the seller.
—     (in the alternative) The aid is compatible with the
      Community guidelines for State aid in the agricultural
      sector: A farmer who invests in the acquisition of land,
      and is the owner of a priority holding, by definition
      satisfies the requirements set out in point 4.1 of the
      Community guidelines as regards the economic viability
      of the holding and the occupational skill required for the           Reference for a preliminary ruling by the Østre Landsret
      grant of structural aid cofinanced by the EU under the               by order of that Court of 14 February 2003 in the case of
      Regulation on improving the efficiency of agricultural               SmithKline Beecham plc against Lægemiddelstyrelsen;
      structures in force at the material time.                                    interveners being Synthon BV and Genthon BV
                                                                                                       (Case C-74/03)
(The subsidising of loans and guarantees for owners of
agricultural holdings                                                                                 (2003/C 101/35)
—     This does not constitute State aid within the meaning of
      Article 87 EC since it does not affect trade between
      Member States: The Spanish measure entailing the sub-
      sidising of loans was actually symbolic in the face of a             Reference has been made to the Court of Justice of the
      sector which felt that its economic viability was seriously          European Communities by order of the Østre Landsret (Eastern
      threatened by the exceptional fuel-price increase. It is             Regional Court) of 14 February 2003, received at the Court
      paradoxical that a palliative measure of such a slight               Registry on 19 February 2003, for a preliminary ruling in the
      unitary significance should give rise to a decision of               case of SmithKline Beecham plc against Lægemiddelstyrelsen
      incompatibility with the common market when it was                   (Danish Medicinal Products Administration); interveners being
      adopted as an alternative to a reduction in taxes of a               Synthon BV and Genthon BV on the following questions: