CELEX: C2004/021/33
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-485/03: Action brought on 19 November 2003 by Commission of the European Communities against Kingdom of Spain

24.1.2004                EN                        Official Journal of the European Union                                             C 21/17
Action brought on 17 November 2003 by the Com-                             Reference for a preliminary ruling by the House of Lords
mission of the European Communities against the Federal                    by order of that court dated 10 November 2003, in the
                        Republic of Germany                                          case of Celtec Ltd against Astley and others
                           (Case C-477/03)                                                          (Case C-478/03)
                            (2004/C 21/31)                                                           (2004/C 21/32)
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-               Reference has been made to the Court of Justice of the
ties on 17 November 2003 by the Commission of the                          European Communities by an order of the House of Lords
European Communities, represented by Claudia Schmidt and                   dated 10 November 2003, which was received at the Court
Wouter Wils, with an address for service in Luxembourg.                    Registry on 17 November 2003, for a preliminary ruling in
                                                                           the case of Celtec Ltd and Astley and others on the following
                                                                           questions:
The applicant claims that the Court should:
                                                                           1.    Are the words ‘the transferor’s rights and obligations
1.    Declare that by failing to adopt the laws, regulations                     arising from a contract of employment or from an
      and administrative provisions necessary to comply with                     employment relationship existing on the date of a
      Directive 2001/12/EC of the European Parliament and of                     transfer’ in Article 3(1) of Council Directive 77/187/EEC
      the Council of 26 February 2001 amending Council                           of 14 February 1977 on the approximation ofthe laws
      Directive 91/440/EEC on the development of the Com-                        of the Member States relating to the safeguarding of
      munity’s railways (1), or by failing to inform the Com-                    employees’ rights in the event of transfers of undertakings,
      mission thereof, the Federal Republic of Germany has                       businesses or parts of businesses (1) to be interpreted as
      failed to fulfil its obligations under that directive.                     meaning that there is a particular point in time at which
                                                                                 the transfer of the undertaking or part thereof is deemed
2.    Declare that by failing to adopt the laws, regulations                     to have been completed and the transfer of rights and
      and administrative provisions necessary to comply with                     obligations pursuant to Article 3(1) is effected?
      Directive 2001/13/EC of the European Parliament and of
      the Council of 26 February 2001 amending Council                     2.    If the answer to question 1 is ‘yes’, how is that particular
      Directive 95/18/EC on the licensing of railway undertak-                   point in time to be identified?
      ings (2), or by failing to inform the Commission thereof,
      the Federal Republic of Germany has failed to fulfil its
                                                                           3.    If the answer to question 1 is ‘no’, how are the words ‘on
      obligations under that directive.
                                                                                 the date of a transfer’ in Article 3(1) to be interpreted?
3.    Declare that by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with               (1) OJ L 61, 5.3.1977, p. 26.
      Directive 2001/14/EC of the European Parliament and of
      the Council of 26 February 2001 on the allocation of
      railway infrastructure capacity and the levying of charges
      for the use of railway infrastructure and safety certifi-
      cation (3), or by failing to inform the Commission thereof,
      the Federal Republic of Germany has failed to fulfil its
      obligations under that directive.
4.    Order the Federal Republic of Germany to pay the costs.              Action brought on 19 November 2003 by Commission of
                                                                              the European Communities against Kingdom of Spain
Pleas in law and main arguments                                                                     (Case C-485/03)
The time-limit for transposition of the directive expired on                                         (2004/C 21/33)
15 March 2003.
(1) OJ 2001 L 75, p. 1.                                                    An action against the Kingdom of Spain was brought before
(2) OJ 2001 L 75, p. 26.                                                   the Court of Justice of the European Communities on 19 No-
(3) OJ 2001 L 75, p. 29.                                                   vember 2003 by Commission of the European Communities,
                                                                           represented by José Luis Buendía Sierra of its Legal Service,
                                                                           acting as Agent, with an address for service in Luxembourg.
 ---pagebreak--- C 21/18                 EN                        Official Journal of the European Union                                           24.1.2004
The applicant claims that the Court should:                                    impossibility of correctly implementing the decision.
                                                                               Although the addressee of the decision, the Kingdom of
                                                                               Spain, did not bring any action against it, this was done
—     declare that, by failing to adopt within the prescribed                  both by the authority granting the aid, the Diputación
      period all the measures necessary to comply with                         Foral de Álava, and the Basque trade association, Confe-
      Articles 2 and 3 of the Commission Decision of 11/07/                    bask. The applicants in those proceedings did not at any
      2001 relating to a State aid scheme applied by Spain to                  time claim that implementation of the decision was
      a number of undertakings in Álava (notified under                        absolutely impossible, merely that it was a complex
      No C(2001)1759) in the form of a tax credit of 45 % of                   matter because of various administrative difficulties of an
      the investments made, or, in any event, by failing to                    internal nature.
      notify the Commission of such provisions in accordance
      with Article 4, the Kingdom of Spain has failed to fulfil
      its obligations under that decision;
                                                                          4.   Irrelevance of internal administrative difficulties: since
                                                                               Spanish law does not expressly provide for a mechanism
                                                                               for recovery of the unlawful and incompatible aid, it was
—     Order the kingdom of Spain to pay the costs.
                                                                               decided to resort to proceedings for review, on the
                                                                               initiative of the authorities themselves, of the tax measures
                                                                               governing the grant of aid, as laid down in the General
                                                                               Tax Code of each of the Historic Territories. However,
                                                                               the national authorities deliberately chose a procedure
                                                                               which makes recovery extraordinarily difficult, namely
                                                                               proceedings for a declaration that certain measures
Pleas in law and main arguments                                                susceptible of annulment have an adverse effect, which
                                                                               renders necessary the satisfaction of a series of cumulative
                                                                               conditions, which it is extremely difficult to fulfil, above
1.    Failure to fulfil the obligation to cancel the aid payments              all from a temporal point of view. Domestic law provides
      outstanding: the measures adopted by the Spanish auth-                   for a number of procedures which, at first sight, are less
      orities do not appear to ensure that the companies                       problematical, such as review of provisions and measures
      enjoying the tax benefits in question prior to the Com-                  which are ipso jure void, a procedure which appears to
      mission decision of 11 July 2001 do not continue to                      be perfectly applicable to the aids granted in breach of
      enjoy them throughout the period initially envisaged.                    the procedure laid down in Article 88 of the EEC Treaty.
      Consequently, the abovementioned measures do not                         Recourse to that procedure would probably be less
      represent fulfilment of the obligation to abolish any                    problematical, in so far as it allows a declaration of nullity
      future payment, as provided for in Article 3(1) of the                   by the Administration itself, without the need to fulfil
      Commission decision as regards aid payments outstand-                    the requirements laid down for the abovementioned
      ing. For the same reason, those measures do not represent                declaration of adverse effects. The national authorities do
      full compliance with the obligation to adopt the measures                not appear in this case to have chosen either the least
      necessary to ensure that the aid scheme does not continue                problematical procedure or the most relevant procedure
      to operate in the future, as provided in Article 2 of the                among those available to them within the domestic legal
      Commission decision.                                                     system.
2.    Failure to fulfil the obligation to recover the aid already
      granted: despite the fact that the decision of 11 July 2001         5.   The principle of genuine cooperation between the Com-
      required immediate recovery, without delay, of the aid                   mission and the Member State: the Commission has
      granted, the only thing that the competent Spanish                       provided all clarifications requested of it, displaying
      authorities had done by October 2001 was, in their own                   availability and flexibility in order to facilitate the task of
      words, ‘to commence contacts with the contributors                       recovery to be undertaken by the national authorities.
      affected’ and in order to ‘gather information’. By express-              Commission officials have shown themselves to be willing
      ing itself in those terms, the Member State openly                       to examine the possibility of applying the de minimis
      recognised that it had not to date taken any measure to                  rule, the regulation on aid for SMEs or the guidelines on
      secure effective recovery of the aid. The Spanish auth-                  regional aid in relation to each individual case of recovery,
      orities have not even disclosed to the Commission the                    provided that they are given a report setting out details
      identity of the beneficiaries of the aid, despite numerous               of the progress achieved with recovery of the aids and the
      requests made to them.                                                   possible grounds on which each of the beneficiaries
                                                                               might qualify.
3.    There is no absolute impossibility of giving effect to the
      decision: according to settles case-law, the only defence
      on which a Member State may rely in the context of
      infringement proceedings brought by the Commission
      under Article 88 (2) of the Treaty is the absolute