CELEX: C2000/006/21
Language: en
Date: 2000-01-08 00:00:00
Title: Case C-378/99: Action brought on 7 October 1999 by the Commission of the European Communities against the Federal Republic of Germany

8.1.2000               EN                    Official Journal of the European Communities                                            C 6/11
— Infringement of the right to a fair hearing: The Com-                 Action brought on 7 October 1999 by the Commission
    mission, even despite having promised in the meantime to            of the European Communities against the Federal Repub-
    do so, did not make it possible for the applicant to                                            lic of Germany
    comment on a report on which the decision is essentially
    based. Documents which had been transmitted to the
    Commission by the Bundesverband deutscher Banken were                                          (Case C-378/99)
    also not made .available to the applicant.
                                                                                                     (2000/C 6/21)
— Defective statement of reasons: The Commission’s sources
    of information have not been sufficiently explained; in
    particular, only isolated statements from the report used
    by the Commission are adduced and not their overall                 An action against the Federal Republic of Germany was
    context. Finally, the Commission relies on its own relevant         brought before the Court of Justice of the European Communi-
    experience, without really possessing any such experience.          ties on 7 October 1999 by the Commission of the European
                                                                        Communities, represented by Marie Wolfcarius, Legal Adviser,
                                                                        and Gerald Braun, of its Legal Service, acting as Agents, with
— Infringement of the Treaty or of a legal provision to be              an address for service in Luxembourg at the office of Carlos
    applied in its implementation: The Commission applied               Gómez de la Cruz, of its Legal Service, Wagner Centre C 254,
    the concept of aid incorrectly and thus infringed Article           Kirchberg.
    87 EC. The incorporation of the Wohnungsbauförderungs-
    anstalt des Landes Nordrhein-Westfalen (Wfa) into the
    Westdeutsche Landesbank Girozentrale (WestLB) does not              The applicant claims that the Court should:
    constitute aid. The payment of 1,1 % before tax or 0,6 %
    after tax payable annually by WestLB to the Land of
    Nordrhein-Westfalen is reasonable. The relevant principle           (1) declare that, by failing by the due date to adopt all
    of the investor of capital operating in market-economy
                                                                             the legislative, regulatory and administrative measures
    conditions has been applied, in the case-law to date of the
                                                                             necessary in order to transpose into national law Council
    Court of Justice, exclusively to cases of reorganisation                 Directive 96/53/EEC (1) of 25 July 1996 laying down for
    and restructuring. Since WestLB is a sound undertaking
                                                                             certain road vehicles circulating within the Community
    operating at a profit, it is doubtful whether the principle
                                                                             the maximum authorized dimensions in national and
    of the capital investor in market-economy conditions is                  international traffic and the maximum authorized weights
    applicable at all in the present case. Even supposing that it
                                                                             in international traffic, the Federal Republic of Germany
    is applicable, the Commission’s decision is defective factu-
                                                                             has failed to fulfil its obligations under that directive;
    ally and legally, since it contradicts the criteria which
    according to the Court’s case-law make up the principle of
    the capital investor acting in market-economy conditions.
    By fastening on average return, the Commission excludes             (2) order the defendant to pay the costs.
    the wide spectrum of other legitimate motives, common
    in practice, of a public and/or private investor in making
    an investment. Contrary to previous practice and the
    case-law of the Court, the Commission thus places itself in         Pleas in law and main arguments
    the position of a private investor and sets itself up as a
    planning authority which fixes investments from public
    funds at a defined expected return and thereby deprives
    public investors of the possibility of behaving like a private      The mandatory nature of the provisions of the third paragraph
    investor in the market. Moreover, the principle of the              of Article 249 EC and of the first paragraph of Article 10 EC
    capital investor acting in market-economy conditions                is such as to oblige Member States to which directives are
    may not — as happened here — be applied without                     addressed to adopt the measures necessary in order fully to
    modification to the present investment in a profitable              transpose those directives into national law before the expir-
    undertaking. The contested decision is also defective               ation of the time-limit prescribed for so doing. The time-limit
    factually. The expected return of ‘12 % after tax’ on which         laid down in Article 11 of the directive expired on 17 Septem-
    the decision is based is incorrect. It has no factual basis         ber 1997 but Germany has not yet adopted all the necessary
    whatever. Finally, there is also no distortion of competition       measures.
    and no adverse affect on trade between States.
(1) OJ No C 366 of 18.12.1999, p. 14.                                   (1) OJ L 235 of 17.9.1996, p. 59.