CELEX: C1996/031/17
Language: en
Date: 1996-02-03 00:00:00
Title: Appeal brought on 17 November 1995 by Tiercé Ladbroke SA against the judgment delivered on 18 September 1995 by the First Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-471/93 , between Tiercé Ladbroke SA and the Commission of the European Communities, supported by the French Republic (Case C-353/95 P)

No C 31 /8             EN                   Official Journal of the European Communities                                        3 . 2 . 96
                 ORDER OF THE COURT                                    following two supplementary questions, received at the
                       ( Second Chamber)                               Court Registry on 9 November 1995 :
                    of 23 November 1995
in Case C-10/95 P: Asociación Española de Empresas de la               '2 . If the answer to Question 1 is that the supplier's taxable
        Carne v. Council of the European Union ( J )                          amount is the price determined by the supply
(Agriculture — Financing ofhealth inspections and controls                    agreement, then, on the proper construction of
offresh meat andpoultrymeat — Action for annulment ofa                        Article 2 (1 ), is the stated amount paid by the supplier
directive — Natural or legal persons — Acts concerning                        to the dealer consideration for which any supply of
them directly and individually — Appeal clearly                               goods or services is effectedf; and
                             unfounded)
                           ( 96/C 31 / 15 )
                                                                       3.     Ifthe answer to Question 2 is "yes then, on the proper
                                                                              construction of Article 17 (2) (a), are such goods or
               (Language of the case: Spanish)                                services supplied by the dealer to the supplier or to some
                                                                              other person ?'.
(Provisional translation; the definitive translation will be
         published in the European Court Reports)                      ( 1 ) OJ No C 119 , 13 . 5 . 1995 , p . 4 .
In Case C-10/95 P: Asociacion Espanola de Empresas de la
Carne ( Asocarne ), an association governed by Spanish law,
based in Madrid, represented by Paloma Llaneza Gonzalez
of the Madrid Bar, with an address for service in
Luxembourg at the Chambers of Loesch and Wolter, 1 1 rue
Goethe , appellant — appeal against the order of the Court
of First Instance of the European Communities ( First
Chamber ) of 20 October 1994 in Case T-99/94 Asocarne v.
Council [ 1994] ECR 11-871 seeking to have that order set              Appeal brought on 17 November 1995 by Tierce Ladbroke
aside, the other party to the proceedings being the Council            SA against the judgment delivered on 18 September 1995 by
of the European Union ( Agents : Ramon Torrent and Ignacio             the First Chamber ( extended composition ) of the Court of
Dfez Parra ) — the Court ( Second Chamber ), composed of               First Instance of the European Communities in Case
G. Hirsch, President ( of the Chamber ), G. F. Mancini                 T-471/93 (^ between Tierce Ladbroke SA and the
( Rapporteur ) and F. A. Schockweiler, Judges; M. N.                   Commission of the European Communities, supported by
Fennelly, Advocate General; R. Grass, Registrar has made                                        the French Republic
an order on 23 November 1995 , in which it:                                                      ( Case C-353/95 P
                                                                                                     ( 96/C 31 / 17 )
1 . dismisses the appeal;
                                                                       An appeal against the judgment delivered on 18 September
2 . orders the appellant to pay the costs.                             1995 by the First Chamber ( extended composition ) of the
                                                                       Court of First Instance of the European Communities in
                                                                       Case T-471 /93 between Tierce Ladbroke SA and the
(') OJ No C 54, 4 . 3 . 1995 .                                         Commission of the European Communities, supported by
                                                                       the French Republic, was brought before the Court of
                                                                       Justice of the European Communities on 17 November
                                                                        1995 by Tierce Ladbroke SA, represented by Jeremy Lever,
                                                                       QC, and Christopher Vajda , Barristers of the Bar of England
                                                                       and Wales, and Stephen Kon, Solicitor, with an address for
                                                                       service in Luxembourg at the Chambers of Winandy & Err,
                                                                       60, avenue Gaston Diderich .
                            Information
                             96/C 31 / 1 6
                                                                       The appellant claims that the Court should :
                                                                        1 . allow this appeal and set aside the judgment of the Court
Reference for a preliminary ruling in Case C-40/95 (') was                    of First Instance in Case T-471 /93 ;
made by the VAT and Duties Tribunal , London, by decision
of that court of 1 February 1995 , in the case of Conoco Ltd
against Commissioners of Customs and Excise . By direction             2.     annul    the   contested      Decision  contained   in    the
of 1 November 1995 , the said court has referred the                          Commission's letter of 18 January 1993 , and
 ---pagebreak--- 3 . 2 . 96              EN I                Official Journal of the European Communities                                     No C 31 /9
3 . order the Commission to pay the costs of Tierce                    Member State must, whether by primary legislation or
       Ladbroke both in the proceedings before the Court of            otherwise, not grant advantageous treatment to particular
       First Instance and before this Court .                          forms of economic activity subject to that Member State 's
                                                                       jurisdiction . Thus, the fact that Article 15 ( III ) constitutes
                                                                       primary legislation and provides that the statutory and fiscal
                                                                       retentions on bets placed in France on Belgian races are to be
Pleas in law and main arguments adduced in support:
                                                                       the same as if those bets were taken in Belgium — but
                                                                       different from when bets are taken on French races — does
                                                                       not mean that the difference in treatment falls outside the
The Court of First Instance 's finding that the opening of the
French market to the Belgian PMU is not in itselfcontrary to           scope of Article 92 . National law must conform to
Article 92 ( I ) of the Treaty solely because it has the effect of     Community law .
increasing the revenue of the Belgian PMU
                                                                       The Court of First Instance 's finding that the treatment of
                                                                       French bets on Belgian races pursuant to Article 75 (III) is
Where a Member State opens up its market to a foreign                  not a State aid because it does not involve a derogation from
undertaking it is necessary to examine whether the revenue             the general system
received by that foreign undertaking comes either directly
from the Member State or as a result of a State-directed
                                                                       Prior to the commencement of the Two PMUs Agreement
transfer of funds . If that is the case there is State aid unless it
                                                                       and Decret No 91-118 the only bets permitted in France
can be shown that the revenue received is a normal payment             were those placed on French races . That was 'the general
for services rendered by that foreign undertaking to either            system '. Article 15 ( III ) was not applied . The introduction,
the State or the transferor of the funds .
                                                                       in 1991 , of a new and different regime does not mean that
                                                                       the different regime becomes the 'general system',
                                                                       particularly when only one undertaking, namely the Belgian
The error of the Court of First Instance was to fail to
                                                                       PMU, can take advantage of the new regime . Article 92 does
analyse :                                                              not permit a Member State to treat foreign trade subject to
                                                                       its jurisdiction in a different way from domestic trade .
                                                                       Equally, measures which are only of benefit to one
  ( i ) whether the revenue obtained by the Belgian PMU
                                                                       particular undertaking cannot be considered to be part of a
        arose as a result of a compulsory levy and transfer
                                                                       general system.
        payment system; and
( ii ) if so, what amount, if any, of that revenue, could be said      ( 1 ) OJ No C 286 , 28 . 10 . 1995 , p . 12 .
        to be for payment for services rendered by the Belgian
        PMU to the PMU .
The Court of First Instance 's finding that the Commission
committed no manifest error in its findings of fact or in its
assessment of the evidence that the Belgian PMU drew no                Appeal brought on 20 November 1995 by TWD
real advantage from the application of the two PMUs                    Textilwerke Deggendorf GmbH against the judgment
Agreement                                                               delivered on 13 September 1995 by the Third Chamber,
                                                                        extended composition, of the Court of First Instance of the
                                                                        European Communities in Joined Cases T-244/93 and
 It is common ground that the Belgian PMU receives between
                                                                        T-486/93 between TWD Textilwerke Deggendorf GmbH
 25 and 28 % of the bets placed in Belgium on Belgian races
                                                                             and the Commission of the European Communities
 and 23,1 % of bets placed in France on Belgian races . The
 issue is whether on those agreed facts there is a State aid .                                  ( Case C-355/95 P)
 There is either an aid pursuant to Article 92 ( 1 ) of the Treaty                                  ( 96/C 31 / 18 )
 or there is not . There is no margin of appreciation on this
 issue . Accordingly the Court of First Instance fell into error
 in considering that the Commission had a margin of                     An appeal against the judgment delivered on 13 September
 appreciation in assessing whether the admitted facts                   1995 by the Third Chamber, extended composition, of the
 disclosed a State aid .                                                Court of First Instance of the European Communities in
                                                                        Joined Cases T-244/93 and T-486/93 between TWD
                                                                        Textilwerke Deggendorf GmbH and the Commission of the
 The Court of First Instance 's finding that, in considering            European Communities was brought before the Court of
 whether there was any real advantage to the Belgian PMU                Justice of the European Communities on 20 November
 the Commission was entitled to have regard to                           1995 by TWD Textilwerke Deggendorf GmbH,
 Article 15 (III) of the Law of 23 December 1964                        Deggendorf ( Federal Republic of Germany ), represented by
                                                                        Walter Forstner, Lutz Radtke and Karl-Heinz Schupp,
                                                                        Rechtsanwalte , assisted by Professor Michael Schweitzer,
 The question of whether a measure adopted in favour of a               Passau, with an address for service in Luxembourg at the
  particular undertaking is a State aid is to be decided by              office of Mr Stein, Bayerische Landesbank International SA,
  Community law not national law. The basic role is that a               7-9, Boulevard Royal .