CELEX: C2000/047/21
Language: en
Date: 2000-02-19 00:00:00
Title: Case C-404/99: Action brought on 22 October 1999 by the Commission of the European Communities against the French Republic

19.2.2000             EN                     Official Journal of the European Communities                                            C 47/13
   number of petrol stations operated will (potentially) result         — Infringement of Article 10 EC, of Article 87(1) EC, of the
   in the same price reduction per individual petrol station as             de minimis rule and of the principles of legal certainty,
   the single grant of the de minimis amount to a petrol                    equal treatment and the protection of legitimate expec-
   station regarded as a separate undertaking. In neither case              tations, together with non-compliance with the obligation
   will there be any difference in the effects on trade and                 requiring the terms of decisions, within the meaning of
   competition between Member States.                                       Article 249 EC, to be specified with sufficient particularity
                                                                            and failure to comply with the obligation, laid down by
— In the alternative, infringement of Article 87(1) EC, of the              Article 253 EC, to provide a statement of reasons, all of
   de minimis rule and of the principles of legal certainty,                the foregoing in connection with the obligation to seek
   equal treatment and the protection of legitimate expec-                  repayment of the subsidies: it is not possible to ascertain
   tations, non-compliance with the obligation requiring the                from the decision which amounts are to be reclaimed
   terms of decisions, within the meaning of Article 249 EC,                from which persons. More fundamentally, the Netherlands
   to be specified with sufficient particularity, and failure to            Government considers that Article 10 EC and the prin-
   comply with the obligation, laid down by Article 253 EC,                 ciples of legal certainty and of the protection of legitimate
   to provide a statement of reasons, all of the foregoing in               expectations preclude any possibility of reclaiming subsi-
   connection with the division of petrol stations into the                 dies already granted pursuant to the Netherlands rules in
   categories of ‘independent’ and ‘company-owned/com-                      force. The Commission was aware — at any rate as from
   pany-operated’ undertakings.                                             18 August 1997 — of the rules in force, of the fact that
— Infringement of Article 87(1) EC, of the de minimis rule and              those rules had been implemented with effect from 1 July
   of the principles of legal certainty, equal treatment and the            1997 and of the Netherlands authorities’ view that such
   protection of legitimate expectations, together with failure             implementation was covered by its notice concerning the
   to comply with the obligation, laid down by Article 253 EC,              de minimis rule. If the Commission took a different view
   to provide a statement of reasons, all of the foregoing in               regarding the meaning of that notice, and if it considered
   connection with the indirect grant of aid to the oil compani-            — notwithstanding the notice on the de minimis rule that
   es, as approved by the Commission in the case of petrol                  the rules in force, like the grant of aid, as provisionally
   stations the exclusive purchasing agreements in respect of               notified on the basis of each individual petrol station,
   which contain a clause providing for a system of price                   needed to be assessed by the Commission in accordance
   controls: the conferment of indirect advantages on the oil               with Article 88(3) EC, then, having regard inter alia to its
   companies, as referred to by the Commission, does not                    obligation under Article 10 EC to cooperate in good faith
   constitute State aid within the meaning of Article 87 EC.                with the national authorities, it should have pointed this
   That is particularly the case where such conferment of                   out immediately and unambiguously to the Netherlands
   indirect advantages arises solely from contractual relations             authorities. The Commission omitted to do so. Moreover,
   with which the authorities have nothing whatever to do                   such a claim for repayment would conflict, vis-à-vis the
   and of which they themselves are unaware. The national                   recipients of the aid, with the principles of legal certainty
   authorities cannot be required, in the performance of their              and of the protection of legitimate expectations (which the
   functions, invariably to verify such indirect effects, which             national courts are required to respect). The notice on the
   are not apparent to them, let alone to exclude the entry into            de minimis rule created a new category of aid measures, in
   force of such effects in all circumstances. That is the position,        respect of which the requirement that aid be notified
   at any rate, in circumstances such as those of the present               and approved in advance ceased to apply. Undertakings
   case, in which the de minimis rule is applicable.                        receiving non-notified grants of aid no longer needed, in
                                                                            those circumstances, to be concerned about the illegality
— Infringement of Article 87(1) EC, of the de minimis rule                  of the aid granted, at any rate in so far as they had
   and of the principles of legal certainty, equal treatment and            reasonable grounds for thinking that that aid was covered
   the protection of legitimate expectations, non-compliance                by the de minimis rule.
   with the obligation requiring the terms of decisions, within
   the meaning of Article 249 EC, to be specified with                  (1) Notice on the de minimis rule for State aid (96/C 68/06) (OJ 1996
   sufficient particularity, together with failure to comply                C 68, p. 9).
   with the obligation, laid down by Article 253 EC, to
   provide a statement of reasons, all of the foregoing in
   connection with the declaration of the incompatibility of
   the aid as regards petrol stations in respect of which, in
   the Commission’s view, the Netherlands authorities have              Action brought on 22 October 1999 by the Commission
   provided no information or only partial information.                 of the European Communities against the French Republic
— Infringement of Article 87(3) EC and failure to comply with                                    (Case C-404/99)
   the obligation, laid down by Article 253 EC, to provide a
   statement of reasons, inasmuch as the Commission, in its                                       (2000/C 47/21)
   assessment of the compatibility of the measures to be
   regarded as aid within the meaning of Article 87(1), failed to       An action against the French Republic was brought before the
   appreciate the environmental objectives of those measures.           Court of Justice of the European Communities on 22 October
   The Netherlands rules were designed to make it possible to           1999 by the Commission of the European Communities,
   achieve an increase in excise duty, which was regarded as            represented by Enrico Traversa, Legal Adviser, acting as Agent,
   necessary for the purposes of environmental protection,              and Nicoles Coutrelis, ‘Advocate’, with an address for service
   whilst at the same time avoiding serious repercussions for           in Luxembourg at the office of Carlos Gómez de la Cruz, of its
   the operators of the petrol stations concerned.                      Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- C 47/14                EN                    Official Journal of the European Communities                                      19.2.2000
The Commission of the European Communities claims that                  The applicant claims that the Court should:
the Court should:
                                                                        1. Declare that the Italian Republic has failed to fulfil its
— declare that by authorising, under certain conditions, the               obligations under Article 49 et seq. EC by maintaining in
     exclusion from the taxable amount for VAT purposes of                 force the following provisions:
     the ‘service charges’ claimed by certain taxable persons,
     the French Republic has failed to fulfil its obligations              — Article 2, first paragraph, and Article 7 of Decree Law
     under Article 2(1) and 11A(1)(a) of Council Directive                     No 454 of 29 January 1934;
     77/388/EEC of 17 May 1977 (Sixth VAT Directive) (1);
— Order the French Republic to pay the costs.                              — Article 2, first paragraph, of Presidential Decree No 7
                                                                               of 15 January 1972;
Pleas in law and main arguments                                            — Article 2(4), (6) and (7) of Presidential Decree No 390
                                                                               of 18 April 1994;
Whilst Articles 266(1)(a) and 267-I of the French General Tax
Code (Code Général des Impôts) correctly transpose the                     — Article 4 of Regional Law of Liguria No 40 of 14 July
provisions of the Sixth VAT Directive, the same is not true                    1978;
of an administrative practice which was confirmed by an
instruction issued on 31 December 1976. A tip in the form of               — Article 6(1)(e), (f), (g) and (h), Article 6(4) and Article 7
a ‘service charge’ centralised by the employer forms an integral               of Regional Law of the Veneto No 35 of 2 August
part of the total price paid by the customer by way of                         1988;
consideration for the service provided by the service provider
and it is therefore the total price, including the service charge,         — Article 2, sixth paragraph, Article 4, first indent,
which constitutes the consideration actually received. That                    Article 6, third and fourth paragraphs and Article 10(a)
charge is different from an extra tip freely and spontaneously                 of Regional Law of the Marches No 16 of 12 March
left by the customer for a particular member of staff.                         1979;
In addition, the Commission points out that to allow that                  — Article 4, Article 5, sixth paragraph, subparagraphs (a)
practice amounts to a distortion of competition between those                  and (c), Article 6, first paragraph, Article 8, first and
establishments which operate the ‘service charge’, a distortion                second paragraphs, and Article 16 of Regional Law
resulting from the arbitrary nature of the purely formal                       No 43 of Emilia-Romagna of 26 May 1980;
conditions imposed by the French Government in order to
qualify for the derogation. Those conditions are wholly alien              — Article 4(1)(c), Article 4(2) and Article 15, third para-
to the fundamental criterion for determining the taxable basis                 graph, of Regional Law of Lombardy No 45 of 29 April
for VAT purposes, namely the consideration actually received                   1980;
by the service provider.
                                                                           — Article 3, Article 4 and Article 8, last paragraph, of
( 1) OJ L 145 of 13.06.1977, p. 1.                                             Regional Law No 10 of Friuli Venezia Giulia of 23 Feb-
                                                                               ruary 1981;
                                                                           — Article, 2, last paragraph, and Article 6 of Regional
                                                                               Law No 75 of Abruzzo of 13 November 1980;
                                                                           — Article 3, Article 5, Article 6, third and fourth para-
                                                                               graphs, Article 12 and Article 19, first paragraph, of
Action brought on 17 November 1999 by the Com-                                 Provincial Law No 35 of the Autonomous Province of
mission of the European Communities against the Italian                        Trento of 2 September 1978;
                             Republic
                                                                        2. Declare that the Italian Republic has failed to fulfil its
                         (Case C-439/99)                                   obligations under Article 49 et seq. and Article 43 et seq.
                                                                           EC by maintaining in force the following provisions:
                          (2000/C 47/22)
                                                                           — Article 3 of Presidential Decree No 7 of 15 January
An action against the Italian Republic was brought before the                  1972;
Court of Justice of the European Communities on 17 Novemb-
er 1999 by the Commission of the European Communities,                     — Article 2(c) and (d), Article 3(b) and (c), and Article 5(a)
represented by Enrico Traversa, Legal Adviser, and Maria                       of Regional Law No 12 of Liguria of 3 November
Patakia, of its Legal Service, acting as Agents, assisted by                   1972;
Andrea Cevese, of the Vicenza Bar, with an address for service
in Luxembourg at the office of Carlos Gómez de la Cruz,                   — Article 8(1) of Regional Law No 35 of the Veneto of
Wagner Centre, Kirchberg.                                                      2 August 1988;