CELEX: C1999/366/21
Language: en
Date: 1999-12-18 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 5 October 1999 in Case C-179/95: Kingdom of Spain v Council of the European Union (Fisheries - Regulation laying down limits on and distributing fishing opportunities among Member States - Fishing quota exchanges - Annulment)

18.12.1999                 EN                    Official Journal of the European Communities                                           C 366/13
                   JUDGMENT OF THE COURT                                         an increase in share capital or a change in a company’s name or
                                                                                 registered office, such as the charge at issue in the main
                                                                                 proceedings, the amount of which increases in direct proportion
                            (Sixth Chamber)                                      to the share capital raised and in respect of which there is no
                                                                                 upper limit.
                        of 29 September 1999
                                                                            4. Article 10 of Directive 69/335, as amended by Directive
                                                                                 85/303, creates rights on which individuals may rely in
in Case C-56/98 (reference for a preliminary ruling from                         proceedings before the national courts.
the Supremo Tribunal Administrativo): Modelo SGPS SA
        v Director-Geral dos Registos e Notariado (1)
                                                                            (1) OJ No C 113 of 11.4.1998.
(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Charge for drawing up a notarially attested act
recording an increase in share capital and a change in a
              company’s name and registered office)
                             (1999/C 366/20)                                                  JUDGMENT OF THE COURT
                                                                                                      (Sixth Chamber)
                    (Language of the case: Portuguese)
                                                                                                     of 5 October 1999
(Provisional translation; the definitive translation will be published      in Case C-179/95: Kingdom of Spain v Council of the
                      in the European Court Reports)                                                 European Union (1)
In Case C-56/98: reference to the Court under Article 177 of                (Fisheries — Regulation laying down limits on and distribut-
the EC Treaty (now Article 234 EC) from the Supremo Tribunal                ing fishing opportunities among Member States — Fishing
Administrativo, Portugal, for a preliminary ruling in the                                    quota exchanges — Annulment)
proceedings pending before that court between Modelo SGPS
SA and Director-Geral dos Registos e Notariado, in the
                                                                                                       (1999/C 366/21)
presence of the Ministério Público — on the interpretation of
Articles 4(3), 10 and 12(1)(e) of Council Directive 69/335/EEC
of 17 July 1969 concerning indirect taxes on the raising of
                                                                                                (Language of the case: Spanish)
capital (OJ, English Special Edition 1969 (11), p. 412), as
amended by Council Directive 85/303/EEC of 10 June 1985
(OJ 1985 L 156, p. 23) — the Court (Sixth Chamber), compo-
                                                                            (Provisional translation; the definitive translation will be published
sed of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray
                                                                                                in the European Court Reports)
and H. Ragnemalm (Rapporteur), Judges; G. Cosmas, Advocate
General; L. Hewlett, Administrator, for the Registrar, has given
a judgment on 29 September 1999, in which it has ruled:                     In Case C-179/95: Kingdom of Spain (Agents: A. Navarro
                                                                            González and R. Silva de Lapuerta) v Council of the European
1. Council Directive 69/335/EEC of 17 July 1969 concerning                  Union (Agents: J. Carbery and G.L. Ramos Ruano), supported
    indirect taxes on the raising of capital, as amended by Council         by Commission of the European Communities (Agents: T. van
    Directive 85/303/EEC of 10 June 1985, must be interpreted as            Rijn and B. Vilá Costa) — application for annulment of the
    meaning that charges constitute taxes for the purposes of the           final sentence of point 1.1(i) of Annex IV to Council Regulation
    directive where they are collected for drawing up notarially            (EC) No 685/95 of 27 March 1995 on the management of the
    attested acts recording a transaction covered by the directive,         fishing effort relating to certain Community fishing areas and
    under a system where notaries are employed by the State and the         resources (OJ 1995 L 71, p. 5) and of the fifth heading, on
    charges in question are paid in part to that State for the financing    anchovies, in Annex I to Council Regulation (EC) No 746/95
    of its official business.                                               of 31 March 1995 amending Regulation (EC) No 3362/94
                                                                            fixing, for certain fish stocks and groups of fish stocks, the
                                                                            total allowable catches for 1995 and certain conditions under
2. A charge payable for drawing up a notarially attested act                which they may be fished (OJ 1995 L 74, p. 1) — the Court
    recording an increase in share capital or a change in a company’s       (Sixth Chamber), composed of: G. Hirsch, President of the
    name or registered office is, where it amounts to a tax for the         Second Chamber, acting as President of the Second Chamber
    purposes of Directive 69/335, as amended by Directive 85/303,           (Rapporteur), J.L. Murray and H. Ragnemalm, Judges; S. Alber,
    in principle prohibited under Article 10(c) thereof.                    Advocate General; D. Louterman-Hubeau, Principal Adminis-
                                                                            trator, for the Registrar, has given a judgment on 5 October
3. ‘Fees or dues’ within the meaning of Article 12(1)(e) of Directive       1999, in which it:
    69/335, as amended by Directive 85/303, do not cover a
    charge collected for drawing up a notarially attested act recording     1. Dismisses the action;
 ---pagebreak--- C 366/14               EN                   Official Journal of the European Communities                                   18.12.1999
2. Orders the Kingdom of Spain to pay the costs;                          would not raise any objections to the financial allocation
                                                                          of the restructuring on grounds of State aids law. In any
3. Orders the Commission of the European Communities to pay its           event, there can be no question of demanding back the
     own costs.                                                           subsidies already paid before the end of 1995, since before
                                                                          the opening of the State aid proceedings in August 1997
                                                                          the Commission had allowed more than three years to
(1) OJ No C 208 of 12.8.1995.                                             elapse in which it did not claim that the information before
                                                                          it was insufficient. In respect of the notified intentions to
                                                                          pay subsidies also, the Commission did not at any time
                                                                          before August 1997 invoke the suspensive effect of
                                                                          Article 93(3) of the EC Treaty (old version) or of
                                                                          Article 6.4.4 of the Fifth Steel Aids Code or Article 6.4.1
                                                                          of the Sixth Steel Aids Code.
Action brought on 9 September 1999 by the Federal
Republic of Germany against the Commission of the
                     European Communities                              — Infringement of the duty to state reasons
                          (Case C-334/99)
                                                                       — Erroneous application of the ECSC Treaty to the competi-
                                                                          tive assessment of non-ECSC production: The Commission
                          (1999/C 366/22)                                 bases its decision on assumptions of the danger of a
                                                                          spillover effect, and not on factual determination of
An action against the Commission of the European Communi-                 disproportionate application of resources in the ECSC area;
ties was brought before the Court of Justice of the European              it gives insufficient weight to an accountant’s report
Communities on 9 September 1999 by the Federal Republic                   proving the contrary.
of Germany, represented by Claus-Dieter Quassowski of the
Federal Ministry of Finance, Bonn, and Joachim Sedemund,
Rechtsanwalt, Berlin, with an address for service at the               — Erroneous assessment of the investment subsidies under
office of Wolf-Dieter Plessing, Federal Ministry of Finance,              the Fifth Steel Aids Code: The Commission behaves
Graurheindorfer Strasse 108, D-53117 Bonn.                                inconsistently when it argues that the subsidies concerned
                                                                          were not notified on time, whereas it itself called upon the
The Federal Republic of Germany claims that the Court should:             Federal Government to withdraw notification that was
                                                                          made on time. In any event, the mere formal infringement
1. Annul Articles 4 to 7 of the Commission’s decision                     of a duty to notify does not justify final demand for
     K(1999) 2264 endg. of 8 July 1999 concerning ‘State aid              repayment where the substantive permissibility of the aid
     granted by Germany to Gröditzer Stahlwerke GmbH and                  has not been examined.
     its subsidiary Walzwerk Burg GmbH’;
2. Order the Commission, pursuant to Article 23 of the ECSC            — Erroneous assessment of the investment subsidies for the
     Statute of the Court of Justice, to transmit all files since         non-ECSC area: The Commission having itself acknowl-
     1994 concerning this aids proceeding to the Court of                 edged in the decision that in respect of the investment
     Justice and allow the applicant to inspect those files;              subsidies a clear distinction was to be made between the
                                                                          application of the EC and the ECSC Treaties, its reference
3. Order the Commission to pay the costs.                                 to the approval criteria of the ECSC Treaty and the Fifth
                                                                          Steel Aids Code is unlawful. Moreover, the EC activities of
                                                                          Gröditzer Stahlwerke do not constitute a ‘sensitive sector’
Pleas in law and main arguments                                           within the meaning of the Treuhand regulation cited by
                                                                          the Commission or the restructuring guidelines of the
— Irregular composition of the Commission: At the time of                 Commission. The ‘Framework for certain steel sectors not
     the decision, a Member of the Commission was ‘on                     covered by the ECSC Treaty’ (1) cited by the Commission
     holiday’, for which no provision is made in the Treaty, and          in its reasoning contains no material criteria for examining
     the transfer of his area of responsibility to another                aids in favour of the steel production areas described in
     Commissioner had the result that he could no longer                  that regulation and individually distinguished from each
     exercise his office; the number of the Commissioners with            other.
     the authority to make a decision was thus effectively
     reduced to nineteen.
                                                                          In carrying out the required assessment exclusively in
— Infringement of the duty to act within a reasonable time,               accordance with Article 87(3) of the EC Treaty, the Com-
     and of the principles of sound administrative practice and           mission should in the exercise of its discretion have applied
     legal certainty: Although the Commission was informed                to this case the approval criteria which it applied in
     by notifications in 1994 and 1995 of financial measures              numerous other cases of restructuring measures, and
     already carried out and planned for the future, it fed the           in particular several comparable cases concerning the
     legitimate expectation of the Federal Government and the             Treuhand, but also in the cases of Société Marseillaise de
     undertakings concerned over a period of three years that it          Crédit (2) or Olympic Airways (3).