CELEX: C1996/336/36
Language: en
Date: 1996-11-09 00:00:00
Title: Action brought on 16 September 1996 by the Commission of the European Communities against the Federal Republic of Germany (Case C-302/96)

9 . 11 . 96                EN                     Official Journal of the European Communities                                  No C 336/ 19
     in accordance with generally accepted principles, the                       voted for, and limited to, reconstruction in the new
     interpretation called for in the strict framework of                        Lander,
     Article 92 ( 2 ) ( c ) is neither a narrow nor a liberal
                                                                             — the reasons given for the contested decision are
     interpretation but one which ensures the effectiveness of
                                                                                 contradictory in that the Commission on the one hand
     the provision .
                                                                                 assumes that the Volkswagen investments in question
     Since the reunification of Germany on 3 October 1990,                       were merely postponed, with its approval, in 1993 and
     the area to which Article 92 ( 2 ) ( c ) of the EC Treaty                   on the other hand claims that they constitute an
     applies has extended beyond the areas of the Federal                        extension of existing capacity,
     Republic affected by the division of Germany to cover                   — the Commission has inadequately assessed the relevant
     the whole of eastern Germany. Already when the                              facts and has in particular mistakenly considered that
     Saarland joined the Federal Republic in 1957 it was clear                   the restructuring measures for Mosel I/Chemnitz I were
     that the area in which the rule in that subparagraph                        temporary measures of employment policy pending the
     applied was extended to the region then joining the                         construction of the new Mosel II/Chemnitz II,
     Republic, in accordance with the principle of
     international law that treaties apply to States as their                — ( in the alternative :) in the context of its assessment of the
     frontiers exist for the time being. This was again                          aids under Article 92 ( 3 ) of the Treaty, the
     confirmed during the negotiations for the Maastricht                        Commission :
     Treaty on European Union; a proposal from the                               — dealt with aid granted on 22 March 1992 essentially
     Luxembourgish Presidency of the Council for an                                  on the basis of the Community framework on State
     amendment to the EEC Treaty in the autumn of 1991                               aid to the motor vehicle industry ( l ), even though
     initially no longer contained the provision in                                  that framework was to expire at the end of 1990 ,
     Article 92 ( 2 ) ( c ) of the EC Treaty . In 1992, furthermore,
     a provision worded identically to Article 92 ( 2 ) ( c ) of the             — ruled out, in formal terms, subparagraph ( b ) which
     EC Treaty was included in Article 61 ( 2 ) ( c ) of the EEA                     the German Government had, as a precaution , given
     Agreement; that would no longer have had any sense                              as a legal basis,
     unless the area of the nine new Federal Lander had also                     — did not apply subparagraph ( a ), even though the
     been meant .                                                                    conditions for its application were met,
     The contested aids for ' Mosel II/Chemnitz II ' are                         — unjustifiably and contrary to long-established
     required in order to compensate for the economic                                practice, regarded the Mosel II/Chemnitz II project
     disadvantages caused by the division of Germany in the                          as expansion investment and not as new
     motor vehicle region of Saxony . Unlike Article 92 ( 2 ) ( b ),                 investment,
      subparagraph ( c ) does not speak of aid to 'make good                     — made non-reconstructible calculations and failed to
      . . . damage' but — more flexibly — to 'compensate for'                        take the supporting documents submitted by
      disadvantages caused by division . Measures serving to                         Volkswagen into acount,
      reestablish comparable economic and social structures
      as between eastern and western Germany are measures                    — breach of the principle of the protection of legitimate
      which compensate within the meaning of                                     expectations by the Commission's surprising
      Article 92 ( 2 ) ( c ). The aim of that provision, which is to             ' about-turn' in no longer regarding Mosel II/Chemnitz II
                                                                                 as new investment but as expansion investment.
      compensate for disadvantages caused by division within
      Germany, is fundamentally different from that of                       (') OJ No C 123 , 18 . 5 . 1989 , p . 3 .
      facilitating the development of certain economic areas or
      activities, provided for in Article 92 ( 3 ). Compensation
      under Article 92 ( 2 ) (c ) involves overcoming, as rapidly
      and effectively as possible, the effects of division . The             Action brought on 16 September 1996 by the Commission
      aids referred to in Article 92 ( 3 ) ( a ) and ( c ), however, lie     of the European Communities against the Federal Republic
      within the different context of the policy of economic                                             of Germany
      and social cohesion within the Community under                                                 ( Case C-302/96 )
      Article 130a of the EC Treaty . That aim is pursued by the
      Community through its regional policy in the                                                     ( 96/C 336/36 )
      framework of Title XIV of the Treaty. The Community                    An action against the Federal Republic of Germany was
      has included eastern Germany in that policy as a                       brought before the Court of Justice of the European
       'Target 1 ' area . That does not, however, entail the                 Communities on 16 September 1996 by the Commission of
      withdrawal of the special development possibilities                    the European Communities, represented by Paul Nemitz, of
      which Germany uses to compensate as rapidly as                         the Commission's Legal Service, with an address for service
      possible, with its own resources and on the basis of the               in Luxembourg at the office of Carlos Gomez de la Cruz, of
       special provisions of Article 92 ( 2 ) ( c ) of the EC Treaty,        the Legal Service of the Commission, Wagner Centre 254,
       for the consequences of division.                                     Kirchberg.
      When examining under Article 93 of the Treaty whether                  The applicant claims that the Court should :
       aid falling under Article 92 ( 2 ) ( c ) is 'required', it must be
       borne in mind that the German legislation practically                 — declare that, by reason of the payment by the Free State
       precludes any misuse . The authorities may not award aid                   of Saxony to Volkswagen Sachsen GmbH and
       ' on the open market'; under the applicable German                         Volkswagen       Immobilienverwaltung           GmbH       of
       legislation , the purpose and amount of possible aids are                  investment aid for their investment projects in Mosel
 ---pagebreak--- No C 336/20           EN                   Official Journal of the European Communities                                     9 . 11 . 96
    and Chemnitz, in the form of investment subsidies                 de Versailles ( Versailles Court of Appeal ) of 8 September
    amounting to DM 90,7 million, the Federal Republic of             1995 , which was received at the Court Registry on
    Germany has infringed the decision of the Commission              23 September 1996 , for a preliminary ruling in the case of
    of 26 June 1996 on the grant of aid by Germany to the             Javico International and Jafico AG v. Yves Saint Laurent
    Volkswagen group for works in Mosel and Chemnitz                  Parfums on the following questions :
    and the third sentence of Article 93 ( 3 ) of the EC
    Treaty,                                                           1 . Where an undertaking ( the supplier ) situated in a
                                                                           Member State of the European Union by contract
— order the Federal Republic of Germany to pay the                         entrusts another undertaking ( the distributor ) situated
    costs .                                                                in another Member State with the distribution of its
                                                                           products in a territory outside the Union, must
Pleas in law and main arguments adduced in support:                        Article 85 ( 1 ) of the Treaty establishing the European
                                                                           Community be interpreted as prohibiting provisions in
Infringement of Community law, in particular the third                     that contract which preclude the distributor from
sentence of Article 93 ( 3 ) of the EC Treaty: the legality of the         effecting any sales in a territory other than the
decision of the Commission is a matter to be determined by                 contractual territory, and hence any sale in the Union,
the Court of First Instance, in which the Free State of Saxony             either by direct marketing or by redirection from the
has in the meantime lodged an application for a declaration                contractual territory ?
of nullity pursuant to Article 173 of the EC Treaty ( Case
T-126/96 ). Until such time as a final judgment has been              2 . In the event that the said Article 85 ( 1 ) prohibits such
delivered in that action, Germany and, consequently, the                   contractual provisions, must it be interpreted as not
Free State of Saxony are obliged to comply fully with the                  being applicable where the supplier otherwise
decision of the Commission .
                                                                           distributed his products on the territory of the Union by
                                                                           means of a selective distribution network which has
                                                                           been the subject of an exemption decision under
                                                                           Article 85 ( 3 )?
Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale della Liguria in the case Fiera
SpA against Unità Sanitaria Locale No 3 ( Genoa ) and
                    Impresa Romagnoli SpA
                        ( Case C-304/96 )                             Reference for a preliminary ruling by the High Court of
                          ( 96/C 336/37 )                             Justice, Queen's Bench Division, by order of that court of
                                                                      16 November 1995 , in the case of the Commissioners of
Reference has been made to the Court of Justice of the                Customs and Excise against T. P. Madgett and R. M.
European Communities by an order of the Tribunale                             Baldwin trading as The Howden Court Hotel
Amministrativo Regionale della Liguria ( Regional                                              ( Case C-308/96 )
Administrative Court of Liguria ), First Civil Chamber, of                                       ( 96/C 336/39 )
4 July 1 996 , received at the Court Registry on 1 9 September
1996 , for a preliminary ruling in the case of Hera SpA
against Unita Sanitaria Locale No 3 ( Genoa ) and Impresa             Reference has been made to the Court of Justice of the
Romagnoli SpA, on the question :                                      European Communities by an order of the High Court of
                                                                      Justice, Queen's Bench Division, of 16 November 1995 ,
whether or not the Community rules allow — and if so in               which was received at the Court Registry on 23 September
what cases — a Member State to make temporary                          1996 , for a preliminary ruling in the case of the
exceptions regarding the entry into force of directives where         Commissioners of Customs and Excise against T. P.
the latter prescribe an appropriate time-limit.                       Madgett and R. M. Baldwin trading as The Howden Court
                                                                      Hotel , on the following questions:
                                                                       1 . What are the criteria for determining whether the
                                                                           operations of a taxable person are the operations of a
                                                                           'travel agent' or 'tour operator' to which the provisions
Reference for a preliminary ruling from the Cour d'Appel de                of Article 26 of Council Directive 77/388/EEC ( ! ) of
Versailles by judgment of that court of 8 September 1995 in                 17 May 1977 on the harmonization of the laws of the
the case of Javico International and Javico AG v. Yves Saint               Member States relating to turnover tax ( the sixth
                        Laurent Parfums                                     Directive on value added tax ) apply ? In particular, do
                        ( Case C-306/96 )                                  the said provisions apply to the operations of a person
                                                                           who, though not a 'travel agent' or 'tour operator' in the
                           ( 96/C 336/38 )                                  ordinary English meanings of those expressions ,
                                                                            provides for the benefit of travellers services of a kind
Reference has been made to the Court of Justice of the                      commonly provided by travel agents or tour
European Communities by a judgment of the Cour d'Appel                      operators ?