CELEX: C1998/234/24
Language: en
Date: 1998-07-25 00:00:00
Title: Action brought on 24 April 1998 by the Federal Republic of Germany against the Commission of the European Communities (Case C-156/98)

C 234/12                EN                 Official Journal of the European Communities                                    25.7.98
                 JUDGMENT OF THE COURT                                Appeal brought on 17 April 1998 by SocieÂteÂ GueÂrin
                                                                      Automobiles EURL against the order delivered on
                         (Fifth Chamber)                              13 February 1998 by the Second Chamber of the Court of
                                                                      First Instance of the European Communities in Case
                         of 28 May 1998                               T-275/97 between SocieÂteÂ GueÂrin Automobiles EURL and
                                                                             the Commission of the European Communities
in    Case    C-298/97: Commission of the European
              Communities v Kingdom of Spain (1)                                           (Case C-153/98 P)
                                                                                             (98/C 234/23)
(Failure of a Member State to fulfil its obligations Ð
Directive 91/157/EEC Ð Failure by a Member State to
adopt programmes provided for in Article 6 of the
                             directive)                               An appeal against the order delivered on 13 February
                                                                      1998 by the Second Chamber of the Court of First
                           (98/C 234/22)                              Instance of the European Communities in Case T-275/97
                                                                      between SocieÂteÂ GueÂrin Automobiles EURL and the
                                                                      Commission of the European Communities was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 17 April 1998 by SocieÂteÂ GueÂrin Automobiles EURL,
                 (Language of the case: Spanish)
                                                                      represented by Jean-Claude Fourgoux, of the Paris and
                                                                      Brussels Bars, with an address for service in Luxembourg
                                                                      at the Chambers of Pierrot Schiltz, 4 Rue BeÂatrix de
                                                                      Bourbon.
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                    The appellant claims that the Court should:
                                                                      Ð set aside the order of the Court of First Instance of the
                                                                          European Communities of 13 February 1998;
In Case C-198/97: Commission of the European
Communities (represented by Fernando Castillo de la
Torre) v Kingdom of Spain (represented by Paloma Plaza                Ð order the Commission to pay the costs.
García), for an application for a declaration that, by
failing to adopt or communicate to the Commission
within the prescribed period the programmes provided for              Pleas in law and main arguments adduced in support:
in Article 6 of Council Directive 91/157/EEC of 18 March
1991 on batteries and accumulators containing certain
dangerous substances (OJ L 78 of 26.3.1991, p. 38), the               Breach of general principles of Community law, in
Kingdom of Spain has failed to fulfil its obligations under           particular the right to an effective judicial remedy,
that article, the Court (Fifth Chamber), composed of:                 legitimate expectations, legal certainty and respect for the
C. Gulmann (Rapporteur), President of the Chamber,                    rights of the defence; failure to observe the provisions of
M. Wathelet, J. C. Moitinho de Almeida, P. Jann and                   the Convention for the Protection of Human Rights and
L. Sevón, Judges; G. Cosmas, Advocate General; R. Grass,              Fundamental Freedoms (Article F.2 of the Maastricht
Registrar, has given a judgment on 28 May 1998, in                    Treaty): since the decision to take no further action on the
which it:                                                             complaint did not mention the court before which an
                                                                      action could be brought, or the time-limit for doing so, it
                                                                      did not fulfil the obligation to respect the fundamental
                                                                      principles of Community law.
1. Declares that, by not adopting within the prescribed
     period the programmes referred to in Article 6 of
     Council Directive 91/157/EEC of 18 March 1991 on
     batteries and accumulators containing certain
     dangerous substances, the Kingdom of Spain has failed
     to fulfil its obligations under that article;
                                                                      Action brought on 24 April 1998 by the Federal Republic
                                                                      of Germany against the Commission of the European
                                                                                              Communities
                                                                                            (Case C-156/98)
2. Orders the Kingdom of Spain to pay the costs.
                                                                                             (98/C 234/24)
(1) OJ C 318 of 18.10.1997.
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of
                                                                      the European Communities on 24 April 1998 by the
                                                                      Federal Republic of Germany, represented by Claus-Dieter
 ---pagebreak--- 25.7.98              EN                 Official Journal of the European Communities                                 C 234/13
Quassowski, Regierungsdirektor in the Federal Ministry of             payment of tax to a later assessment period. At the
Economic Affairs, D-53107 Bonn, and Dr Klaus Alfred                   latest when the shareholding is disposed of, however,
Schroeter, Rechtsanwalt, of Hartwicusstraûe 5, D-22087                the tax then has to be paid.
Hamburg.
                                                                      Even if the opportunity, improved to a degree as a
The applicant claims that the Court should:                           result of this tax advantage, for companies to obtain
                                                                      capital is regarded as an economic benefit, that alone
                                                                      does not suffice for it to be concluded that there is an
                                                                      element of aid. The opportunity, improved by the
1. Annul the decision of the Commission of the European
                                                                      altered framework, to attract capital in market
    Communities of 21 January 1998 Ð K (1998) 231
                                                                      conditions does not have the character of aid because
    endg. Ð concerning tax advantages under
                                                                      of the absence of resources inflowing from State
    Paragraph 52(8) of the German Einkommensteuer-
                                                                      sources.
    gesetz;
                                                                      The Commission wrongly supposes that the investor
2. Order the Commission to pay the costs.                             who has received the tax advantage will pass his tax
                                                                      benefit on in whole or in part. From an economic
                                                                      point of view, no reasons for this can be seen.
Pleas in law and main arguments adduced in support:
                                                                      It is well known, as the Commission too is aware, that
Ð Breach of Article 190 of the EC Treaty: Paragraph                   in the region in question it is still the case that
    52(8) of the Einkommensteuergesetz (Law on Income                 significantly more equity capital is sought than the
    Tax, the EStG') provides for extended possibilities of           available supply of capital. Investors who are given
    rolling over hidden reserves on the acquisition of                tax advantages are thus not competing with other
    shareholdings. The advantages are for the acquisition             investors who outbid' them. Finally, the temporary
    Ð including via intermediate holding companies Ð of               nature of the tax benefit following from
    shareholdings in companies with their seat and                    Paragraph 52(8) of the EStG precludes the investor
    management in the new Länder or Berlin and with not               who receives the tax benefit from passing his tax
    more than 250 employees. The Commission rightly                   benefit on in whole or in part, because he will then
    assumes in the contested decision that this provision in          mostly be in a worse position ultimately than if he had
    favour of potential capital investors who are liable to           not rolled over the hidden reserves realised from his
    income tax constitutes an aid-free general measure.               original shareholding but had paid tax thereon at
    The Commission wrongly considers, however, that by                once.
    this tax advantage the companies themselves are given
    an economic benefit; nowhere in the entire grounds of
    the contested decision is it clearly and unambigously             The Commission's attempt to separate the concept of
    stated what the element of aid is alleged to consist in           aid from the requirement for the use of State resources
    and how it is to be quantified.                                   is not only incompatible with the wording of
                                                                      Article 92(1) of the EC Treaty, but would also
                                                                      ultimately largely deprive the Member States of
                                                                      capacity to make general changes to the economic
    The Commission also fails to provide any
                                                                      framework, binding them to approval' by the
    comprehensible reasoning concerning the elements of
                                                                      Commission via the mechanisms of Articles 92 and 93
    threatened distortion of competition and effect on
                                                                      of the EC Treaty.
    trade between Member States.
                                                                   Ð (In the alternative) Failure to observe the de minimis
    Finally, the contested decision also contains                     principle: As follows from Commission Notice 98/
    insufficient reasons, or no reasons at all, for finding           C 68/06, the Commission regards aid of up to ECU
    that the conditions of Article 92(2)(c) of the EC Treaty          100 000 over a three-year period as compatible with
    are not satisfied and that a declaration of                       the common market under the de minimis principle. In
    compatibility under Article 92(3) of the EC Treaty is             view of that general assessment no reason can be seen
    (allegedly) impossible; the possibility of requiring the          why the Commission does not assess an economic
    provision to be altered rather than abolished was                 benefit whose alleged aid element is neither specifiable
    evidently not even considered by the Commission.                  nor quantifiable as insignificant under the de minimis
                                                                      principle.
Ð Incorrect application of Article 92(1) of the EC Treaty:
    In the case of both the general rule in Paragraph 6b of        Ð (In the alternative) Failure to take account of
    the EStG and the amendment under Paragraph 52(8)                  Article 92(2)(c) of the EC Treaty: This provision is
    of the EStG it is in the nature of the tax advantage              Community law in force and applicable as such. The
    accorded that the resulting tax benefit is of a                   Commission is restricted to examining whether the
    temporary nature only. The taxpayer can postpone the              conditions for the statutory exception are satisfied; if
 ---pagebreak--- C 234/14                EN                 Official Journal of the European Communities                                   25.7.98
     that is the case, there is no scope left for the exercise        falls within the scope of the EC Treaty because, although
     of discretion.                                                   their main purpose is not to maximise or redistribute
                                                                      profits, the associations in question may provide services
                                                                      for consideration or obtain income, thus participating in
Ð (In the alternative) Incorrect exercise of discretion in            economic life. The expression profit-making' used in the
     making an assessment under Article 92(3)(a) and (c) of           second paragraph of Article 58 of the EC Treaty refers to
     the EC Treaty.                                                   a Community law concept and does not relate to the
                                                                      domestic law of the Member States.
Ð In so far as the Commission considers that there was a
     breach of Article 52 of the EC Treaty, that too is not
     capable of founding the lawfulness of the contested
     decision. Article 52 of the EC Treaty does not
     constitute a suitable legal basis for the contested
     decision.                                                        Reference for a preliminary ruling by the Tribunale
                                                                      Amministrativo per la Sardegna by judgment of that court
                                                                      of 12 February 1998, in the case of Holst Italia SpA
                                                                      against Municipality of Cagliari and Ruhrwasser AG
                                                                                 International Water Management SpA
                                                                                             (Case C-176/98)
Action brought on 8 May 1998 by the Commission of the                                         (98/C 234/26)
  European Communities against the Kingdom of Belgium
                          (Case C-172/98)
                                                                      Reference has been made to the Court of Justice of the
                           (98/C 234/25)                              European Communities by judgment of the Tribunale
                                                                      Amministrativo per la Sardegna (Administrative Court,
                                                                      Sardinia), of 12 February 1998, received at the Court
An action against the Kingdom of Belgium was brought                  Registry on 11 May 1998, for a preliminary ruling in the
before the Court of Justice of the European Communities               case of Holst Italia SpA against Municipality of Cagliari
on 8 May 1998 by the Commission of the European                       and Ruhrwasser AG International Water Management
Communities, represented by Maria Patakia, of its Legal               SpA on the following question:
Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.                          whether Council Directive 92/50/EEC (1) of 18 June 1992
                                                                      relating to the coordination of procedures for the award
                                                                      of public service contracts allows a company to prove that
The applicant claims that the Court should:                           it possesses the technical and financial qualifications laid
                                                                      down for admission to a published tendering procedure
                                                                      for the award of a public service contract by relying on
1. declare that, by requiring, as appropriate, the presence           the references of another person who is the sole
     of a Belgian associate on the board of an association            shareholder of one of the companies which own the first-
     or a minimum number of associates of Belgian                     mentioned company.'
     nationality which must, moreover, constitute a
     majority, before an association may be incorporated or           (1) OJ L 209 of 24.7.1992, p. 1.
     granted legal personality, the Kingdom of Belgium has
     failed to fulfil its obligations under Article 6 of the EC
     Treaty;
2. order the Kingdom of Belgium to pay the costs.
                                                                      Action brought on 18 May 1998 by the Commission of
                                                                      the European Communities against the Grand Duchy of
Pleas in law and main arguments adduced in support:
                                                                                               Luxembourg
                                                                                             (Case C-188/98)
The legislation referred to, namely:
                                                                                              (98/C 234/27)
Ð the Law of 25 October 1919 which confers legal
     personality on international associations whose objects          An action against the Grand Duchy of Luxembourg was
     are philanthropic, religious, scientific, artistic or            brought before the Court of Justice of the European
     pedagogical',                                                    Communities on 18 May 1998 by the Commission of the
                                                                      European Communities, represented by Maria Patakia, of
                                                                      its Legal Service, acting as Agent, with an address for
Ð the Law of 27 June 1921 which confers legal                        service in Luxembourg at the office of Carlos Gómez de la
     personality on non-profit-making associations . . .'             Cruz, of its Legal Service, Wagner Centre, Kirchberg.