CELEX: C1997/318/22
Language: en
Date: 1997-10-18 00:00:00
Title: Appeal brought on 4 September 1997 by the Commission of the European Communities against the judgment delivered on 10 July 1997 by the Second Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-227/95 between AssiDomän Kraft Products AB and Others and the Commission of the European Communities (Case C-310/97 P)

18 . 10 . 97                 I EN                  Official Journal of the European Communities                                  C 318/ 11
Reference for a preliminary ruling by the High Court                          2 . Is it compatible with the applicable Community law,
of Ireland, by order of that court dated 29 May 1997, in                           and in particular with Articles 52 and 58 of the EC
the case of Connemara Machine Turf Company against                                 Treaty, read together, for the tax levied in a non­
                                Coillte Teoranta                                   member State on the profits of a subsidiary in that
                                ( Case C-306/97)                                   State of a branch establishment in Germany of a
                                                                                   company having its seat in another Member State not
                                  ( 97/C 318/19 )                                  to be credited against the German corporation tax on
                                                                                   that German branch establishment under the same
                                                                                   conditions as for a company having its seat in
Reference has been made to the Court of Justice of the                             Germany ?
European Communities by an order of the High Court of
Ireland dated 29 May 1997, which was received at the
Court Registry on 2 September 1997, for a preliminary                         3 . Is it compatible with the applicable Community law,
ruling in the case of Connemara Machine Turf Company '                             and in particular with Articles 52 and 58 of the EC
against Coillte Teoranta on the following questions:                               Treaty, read together, for a branch establishment in
                                                                                   Germany of a company having its seat in another
                                                                                   Member State not to be accorded Schachtelprivileg in
( i ) Is the Defendant a 'contracting authority' within
                                                                                   respect of capital tax under the same conditions as for
       the definition of the term 'contracting authorities'                        a company having its seat in Germany ?
       contained in Article 1 ( b) of Council Directive 77/62/
       EEC H ?
( ii ) Is the Defendant a 'contracting authority' within
       the definition of the term 'contracting authorities'
       contained in Article 1 ( b) of Council Directive 93/36/
       EEC ( 2)?                                                              Reference for a preliminary ruling by Pretura
                                                                              Circondariale di Bari, by order of that court of 19 August
(') Council        Directive      77/62/EEC   of   21  December    1976         1997, in the case of Giuseppe Manfredi v. Regione Puglia
      coordinating procedures for the award of public supply                                            ( Case C-308/97)
      contracts ( OJ L 13 , 15 . 1 . 1977, p. 1 ).
( 2 ) Council Directive 93/36/EEC of 14 June 1993 coordinating                                              97/C 318/21 )
      procedures for the award of public supply contracts ( OJ L 199,
      9 . 8 . 1993 , p. 1 ).
                                                                              Reference has been made to the Court of Justice of the
                                                                              European Communities by an order of the Pretura
                                                                              Circondariale di Bari ( Magistrate's Court, District of Bari )
                                                                              of 19 August 1997, which was received at the Court
                                                                              Registry on 3 September 1997, for a preliminary ruling
Reference for a preliminary ruling from the Finanzgericht                     in the case of Giuseppe Manfredi v. Regione Puglia
Koln by order of that court of 30 June 1997 in the case of                    concerning the extension of the prohibition of the planting
Compagnie de Saint-Gobain, German branch v. Finanzamt                         of new vines laid down in Article 6 ( 1 ) of Council
                               Aachen-Innenstadt                              Regulation ( EEC) No 822/87 ( ] ) to vines intended for the
                                                                              production of table grapes.
                                  Case C-307/97 )
                                  ( 97/C 318/20 )                             0 ) OJ L 84, 27. 3 . 1987, p . 1 .
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht
Koln (Finance Court, Cologne ) of 30 June 1997, which
was received at the Court Registry on 2 September 1997,
for a preliminary ruling in the case of Compagnie de                          Appeal brought on 4 September 1997 by the Commission
Saint-Gobain, German branch v. Finanzamt Aachen­                              of the European Communities against the judgment
Innenstadt on the following questions:                                        delivered on 10 July 1997 by the Second Chamber
                                                                              ( extended composition) of the Court of First Instance of
1 . Is it compatible with the applicable Community law,                       the European Communities in Case T-227/95 between
       and in particular with Articles 52 and 58 of the EC                    AssiDoman Kraft Products AB and Others and the
       Treaty, read together, for a branch establishment in                            Commission of the European Communities
       Germany of a company having its seat in another                                                ( Case C-3 10/97 P)
       Member State not to be accorded Schachtelprivileg (a
       form of tax relief in respect of profits distributed                                               ( 97/C 318/22 )
       between parent company and subsidiary) in respect of
       dividends under a double taxation agreement with a
       non-member State under the same conditions as for a                    An appeal against the judgment delivered on 10 July 1997
       company having its seat in Germany ?                                   by the Second Chamber (extended composition) of the
 ---pagebreak--- C 318/ 12            I EN                   Official Journal of the European Communities                                          18 . 10 . 97
Court of First Instance of the European Communities in                        cannot have been annulled by the Wood pulp
Case T-227/95 ('), between AssiDoman Kraft Products AB                        judgment, but that ( points 64 to 95 ) those fines have,
and Others and the Commission of the European                                 as a result of this judgment, no legal basis and thus
Communities, was brought before the Court of Justice of                       must be repaid .
the European Communities on 4 September 1997 by the
Commission of the European Communities, represented
                                                                       (') OJ C 252 , 16 . 8 . 1997, p . 28 .
by Wouter Wils, a member of its Legal Service, acting as               ( 2 ) Case 97/86 , [ 1988 ] ECR, p . 2181 .
Agent, with an address for service in Luxembourg at the                ( 3 ) Joined Cases 42/59 and 49/59 , [ 1961 ] ECR, p. 53 .
office of Carlos Gomez de la Cruz, also a member of its
Legal Service , Centre Wagner, Kirchberg.
The appellant claims that the Court should quash the
contested judgment of the Court of First Instance and, the
state of the proceedings so permitting, give final judgment
in the matter by dismissing the application for annulment              Action brought on 15 September 1997 by the Commission
as inadmissible, or in the alternative, as unfounded, and              of the European Communities against the Kingdom of
ordering the applicants at first instance to pay the costs                                                   Spain
for the procedure at both levels of jurisdiction.                                                    Case C-3 18/97
                                                                                                      ( 97/C 318/23 )
Pleas in law and main arguments adduced in support:
                                                                       An action against the Kingdom of Spain was brought
The Commission submits that the judgment is based on an                 before the Court of Justice of the European Communities
 erroneous interpretation of Article 176 of the Treaty,                 on 15 September 1997 by the Commission of the
which furthermore disregards Article 173 and 189 of                     European Communities, represented by Jose Luis Iglesias
 the Treaty. Finally, the contested judgment contains                   Buhigues, acting as Agent, with an address for service in
 contradictory reasoning:                                               Luxembourg at the office of Carlos Gomez de la Cruz, of
                                                                        its Legal Service, Wagner Centre, Kirchberg.
 — The Court of First Instance 's interpretation of Article
     176 is not supported by the judgments of the Court of              The applicant claims that the Court should :
     Justice in the Asteris ( 2 ) and Snupat ( 3 ) cases, to which
     points 69 and 70 of the contested judgment refer.
     Neither of these judgments provides an answer to
     the question whether an undertaking on which the                   — declare that, by failing to adopt and bring into force
     Commission has imposed a fine for a competition                           within the prescribed period the laws, regulations or
     law infringement and which has not brought an                             administrative provisions necessary to comply with
     application for annulment of the decision but has paid                    Council Directive 93/13/EEC of 5 April 1993 on
     the fine can later claim reimbursement of the fine, on                    unfair terms in consumer contracts ('), the Kingdom of
     the basis that the Court annulled the fines imposed on                    Spain has failed to fulfil its obligations pursuant to
     other undertakings which did appeal the Commission's                      Articles 5 and 189 of the EC Treaty, and
     decision .
                                                                        — order the Kingdom of Spain to pay the costs .
 — In its final result, the contended judgment makes a
     mockery of the two-month time limit in Article 173 of
     the EC Treaty. It furthermore disregards Article 189 of             Pleas in law and main arguments adduced in support:
     that Treaty in that it contradicts the individual nature
     of decisions . It follows from the general nature of a
     Regulation that its annulment by the Court affects the              The mandatory nature of the provisions of the third
     legal position not only of the parties before the Court             paragraph of Article 189 and the first paragraph of
      but of all those to whom the Regulation may apply.                 Article 5 of the EC Treaty requires Member States to
      On     the   other   hand,     decisions     are   individual
                                                                         adopt the measures necessary to transpose Directives
      administrative acts, affecting the legal position of               addressed to them into their domestic law before the
      individual addressees . If an addressee challenges a               expiry of the period prescribed for doing so . That period
      decision addressed to him and obtains its annulment,
                                                                         expired on 31 December 1994 without the Kindom of
      this only affects the legal position of the successful             Spain having brought into force the necessary provisions .
      applicant.
                                                                          (') OJ L 95 , 21 . 4 . 1993 , p . 29 .
  — It is plainly contradictory to hold at the same time
      that ( points 58 and 60 ) the decisions imposing fines on
      the Swedish addressees continue to be valid and