CELEX: C1998/072/14
Language: en
Date: 1998-03-07 00:00:00
Title: Action brought on 23 December 1997 by the Kingdom of Spain against Commission of the European Communities (Case C-443/97)

7.3.98                EN                  Official Journal of the European Communities                                     C 72/7
3. Does Article 92(1) of the EC Treaty preclude a                    Verwaltungsgerichtshof (Higher Administrative Court) of
    provision exempting the sale of wine direct from the             18 December 1997, received at the Court Registry on
    vineyard from beverage duty?'                                    29 December 1997, for a preliminary ruling in the case of
                                                                     Sandoz GesmbH v. Finanzlandesdirektion für Wien,
(1) OJ L 145, 13.6.1977, p. 1.                                       Niederösterreich und Burgenland (Regional Finance Office
(2) OJ L 76, 23.3.1992, p. 1.                                        for Vienna, Lower Austria and Burgenland) on the
                                                                     following questions:
                                                                     1. Do Article 73b in conjunction with Article 73d (in
                                                                         particular, Article 73d(3)) of the EC Treaty and
Reference      for    a     preliminary    ruling    by    the           Article 1(1) in conjunction with Article 4 of Directive
Verwaltungsgerichtshof, Austria, by order of that court of               88/361/EEC (1) concerning the movement of capital
10 December 1997 in the appeals brought by Holger                        preclude the continued application of the first sentence
Warnecke, Dirk Schultz, Rudolf Weinzierl, Johann                         of the fourth subparagraph of Paragraph 33 TP 8 of
Schachtner,       Konrad       Sonnleitner      and     Ulrich           the 1957 Gebührengesetz (Law on Stamp Duties,
Muckenschnabel           against      the        Unabhängiger            hereinafter the GebG', in the version published in
Verwaltungssenat des Landes Salzburg, Additional Party:                  BGBl. (Federal Law Gazette) 818/1993), which
       Bundesminister für Wissenschaft und Verkehr                       provides that, where a loan granted by a lender who
                                                                         neither resides in Austria nor maintains his habitual
                       (Case C-438/97)
                                                                         abode, his head office or his seat there is not recorded
                         (98/C 72/12)                                    in an instrument giving rise to liability to pay stamp
                                                                         duty, the books and records which are maintained by
Reference has been made to the Court of Justice of the                   the debtor in accordance with the national rules on
European        Communities        by     order      of    the           taxes and duties and in which the loan is recorded are
Verwaltungsgerichtshof (Administrative Court), Austria, of               to be deemed to constitute the relevant document?
10 December 1997, received at the Court Registry on
29 December 1997, for a preliminary ruling in the appeals            2. Does the taxation of loans (in so far as they result in a
brought by Holger Warnecke, Dirk Schultz, Rudolf                         flow of capital from one Member State to another)
Weinzierl, Johann Schachtner, Konrad Sonnleitner and                     under the first subparagraph of Paragraph 33 TP 8
Ulrich Muckenschnabel against the Unabhängiger                           GebG constitute arbitrary discrimination or a
Verwaltungssenat des Landes Salzburg (Independent                        concealed restriction on the free movement of capital
Administrative Board for the Land of Salzburg),                          and payments within the meaning of Article 73b of
Additional Party: Bundesminister für Wissenschaft und                    the Treaty?
Verkehr (Federal Minister for Science and Transport) on
the following question:
                                                                     (1) OJ L 178, 8.7.1988, p. 5.
Are Articles 30 to 36 of the EC Treaty (provisions on the
freedom of movement of goods) and the other provisions
of applicable Community law to be interpreted as
preventing a Member State from restricting the transport
of animals for slaughter in that animals may be
transported for slaughter only as far as the nearest suitable        Action brought on 23 December 1997 by the Kingdom of
abattoir in that State, and may be transported for                    Spain against Commission of the European Communities
slaughter in any event only if the provisions of law
regarding motor vehicles and traffic regulation are                                         (Case C-443/97)
observed and a total journey time of six hours and a                                          (98/C 72/14)
distance of 130 kilometres are not exceeded, whereby, in
calculating the distance, account is taken of only half of
the kilometres actually travelled on a motorway?                     An action against the Commission of the European
                                                                     Communities was brought before the Court of Justice of
                                                                     the European Communities on 23 December 1997 by the
                                                                     Kingdom of Spain, represented by Rosario Silva de
                                                                     Lapuerta, Abogado del Estado, with an address for service
                                                                     in Luxembourg at the Spanish Embassy, 4Ð6 Boulevard
Reference for a preliminary ruling from the Austrian                 E. Servais.
Verwaltungsgerichtshof by order of that court of
18 December 1997 in the case of Sandoz GesmbH v.
Finanzlandesdirektion für Wien, Niederösterreich und                 The applicant claims that the Court should:
                          Burgenland
                       (Case C-439/97)                               1. annul the Commission Guidelines of 15 October 1997
                         (98/C 72/13)                                    relating to the net financial adjustments pursuant to
                                                                         Article 24 of Regulation (EEC) No 4253/88 (1); and
Reference has been made to the Court of Justice of
the European Communities by order of the Austrian                    2. order the defendant institution to pay the costs.
 ---pagebreak--- C 72/8                EN                 Official Journal of the European Communities                                     7.3.98
Pleas in law and main arguments adduced in support:                 Appeal brought on 7 January 1998 by British Steel plc
                                                                    against the judgment delivered on 24 October 1997 by
                                                                    the First Chamber (Extended Composition) of the Court
Actionable measure                                                  of First Instance of the European Communities in Case
                                                                    T-243/94 between British Steel plc, supported by SSAB
The Kingdom of Spain challenges Commission                         Svenskt Stål AB and Det Danske Stålvalsevñrk A/S and
Guidelines' intended to help its departments to implement           the Commission of the European Communities, supported
Article 24 of Regulation (EEC) No 4253/88. None the                 by the Council of the European Union, the Italian
less, despite the term used by the institution which drafted        Republic, the Kingdom of Spain and Ilva Laminati Piani
the contested act, the Kingdom of Spain considers that it                                        SpA
constitutes an actionable measure within the meaning of                                    (Case C-1/98 P)
Article 173 of the EC Treaty as interpreted by the Court
of Justice.                                                                                  (98/C 72/15)
Lack of competence of the Commission
                                                                    An appeal against the judgment delivered on 24 October
                                                                    1997 by the First Chamber (Extended Composition) of the
Article 24 of Regulation (EEC) No 4253/88 only confers              Court of First Instance of the European Communities in
on the Commission the power to reduce, suspend or                   case T-243/94 between British Steel plc, supported by
cancel assistance if an operation or measure appears to             SSAB Svenskt Stål AB and Det Danske Stålvalsevñrk A/S
justify only part of the assistance allocated and if there is       and the Commission of the European Communities,
an irregularity or a significant change affecting the nature        supported by the Council of the European Union, the
or conditions of the operation or measure for which the             Italian Republic, the Kingdom of Spain and Ilva Laminati
Commission's approval has not been sought.                          Piani SpA, was brought before the Court of Justice of the
                                                                    European Communities on 7 January 1998 by British Steel
                                                                    plc, represented by Messrs Richard Plender QC and
The sole object of the power conferred by Article 24 on
                                                                    William Sibree, solicitor of the Supreme Court, with an
the Commission to reduce, suspend or cancel assistance is
                                                                    address for service in Luxembourg at the Chambers of
to prevent such assistance being directed to something
                                                                    Elvinger, Hoss and Prussen, 15 Côte d'Eich.
other than that for which it was allocated. The power
conferred on the Commission was in no way intended to
serve as a means of penalising the failure of Member
States to fulfil their obligations under Article 23 of the          The Appellant claims that the Court should:
Regulation.
                                                                    (i)   quash the decision of the Court of First Instance;
The Commission may not resort to its powers under
Article 24 in order to impose economic sanctions upon
Member States for failure to fulfil other provisions. The           (ii) annul Commission Decisions 94/258/ECSC (1) and
Commission only has the power to allocate and, therefore,                 94/259/ECSC (2) of 12 April 1994; and
except where there exists a specific provision conferring
upon it actual powers to impose penalties, should Member
States fail to fulfil their obligations under Article 23, the
                                                                    (iii) order the Commission to pay the Appellant's costs in
Commission only has available the general procedure
                                                                          the Court of Justice and in the Court of First
under Article 169 of the EC Treaty, whose only object is
                                                                          Instance.
to find that a Member State has breached Community law
and that it should bring such infringement to an end,
without involving the application of a pecuniary sanction,
save in the case of failure to comply with a judgment as            Alternatively, in case the Court of Justice should consider
provided for in Article 171 of the EC Treaty.                       that the state of the proceedings does not permit it to give
                                                                    final judgment in the matter, the Appellant requests the
                                                                    Court to refer the case back to the Court of First Instance
Failure to provide a statement of reasons                           for judgment and reserve the costs.
When it adopted the guidelines' which the Kingdom of
                                                                    Pleas in law and main arguments adduced in support:
Spain is challenging, the Commission failed to set forth
both the reason why it took the decision to apply
economic penalties on Member States for failure to fulfil
their obligations under Article 23 of Regulation (EEC)              These proceedings raise a point which is of general
No 4253/88 and the basis on which such power to impose              importance, particularly for the Community's coal and
sanctions is based.                                                 steel industries. It may be summarised as follows.
(1) OJ L 374, 31.12.1988, pp. 1Ð14.
                                                                    When there is in force a general Decision declaring that
                                                                    aid in any form whatsoever and whether specific or non-
                                                                    specific which Member States might grant to their steel