CELEX: C1998/041/18
Language: en
Date: 1998-02-07 00:00:00
Title: Action brought on 2 December 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-404/97)

C 41/10               EN                Official Journal of the European Communities                                    7.2.98
On a proper construction of Article 52 of the EC Treaty            The continued failure by the Portuguese Republic to fulfil
and, as the case may be, Article 92(1), do those provisions        its obligations under the abovementioned Decision entails,
preclude legislation, affecting a territory within an              at the same time, infringement of Article 93(3) of the
autonomous community of a Member State, on urgent                  Treaty, since Portugal continues not to comply with the
fiscal measures to aid investment and stimulate economic           suspensory effect of the aforementioned Decision which is
activity, which may benefit taxable persons who pay tax            intended to prevent the payment of aid incompatible with
exclusively to the tax authorities for that territory or are       the common market and, indirectly, of Article 93(2),
resident there for tax purposes and whose volume of                which provides for the adoption of decisions requiring the
transactions in that autonomous community preceding tax            abolition of incompatible aid.
year exceeds 25 % of their total volume of transactions,
and which does not include among those to whom those
measures apply other natural and legal persons resident in         (1) OJ C 357, 22.11.1997, p. 14.
the State itself or in another Member State of the
European Community?
                                                                   Reference for a preliminary ruling by the Finanzgericht
                                                                   Bremen by order of that court of 7 October 1997 in the
Action brought on 2 December 1997 by the Commission                case of Mövenpick Deutschland GmbH für das
of the European Communities against the Portuguese                 Gastgewerbe, (formerly Deutsche EIG' Einkaufs- und
                           Republic                                Importgesellschaft für das Gastgewerbe mbH) against
                       (Case C-404/97)                                                 Hauptzollamt Bremen
                         (98/C 41/18)                                                     (Case C-405/97)
                                                                                            (98/C 41/19)
An action against the Portuguese Republic was brought
before the Court of Justice of the European Communities
on 2 December 1997 by the Commission of the European               Reference has been made to the Court of Justice of the
Communities, represented by Dimitris Triantafyllou and             European Communities by order of the Finanzgericht
Ana Maria Alves Vieira, of its Legal Service, acting as            (Finance Court), Bremen of 7 October 1997, received at
Agents, with an address for service in Luxembourg at the           the Court Registry on 3 December 1997, for a preliminary
office of Carlos Gómez de la Cruz, of its Legal Service,           ruling in the case of Mövenpick Deutschland GmbH
Wagner Centre, Kirchberg.                                          für das Gastgewerbe, (formerly Deutsche EIG' Einkaufs-
                                                                   und Importgesellschaft für das Gastgewerbe mbH) v.
                                                                   Hauptzollamt Bremen on the following questions:
The applicant claims that the Court should:
                                                                   1. Is the Common Customs Tariff in the version
1. declare that, by failing to abolish and recover, within              contained in Annex I to Commission Regulation
    the prescribed period, the aid from which EPAC                      (EEC) No 2551/93 of 10 August 1993 (OJ L 241,
    (Empresa para a AgroalimentacËaÄo e Cereais, SA)                    27.9.1993, p. 1) amending Annex I to Council
    unduly benefited, the Portuguese Republic has failed                Regulation (EEC) No 2658/87 on the tariff and
    to fulfil its obligations under the EC Treaty and, in               statistical nomenclature and on the Common Customs
    particular, under Commission Decision C(97) 2130 of                 Tariff (Combined Nomenclature 1994) to be
    9 July 1997;                                                        interpreted so that dried walnut pieces imported from
                                                                        a non-member country, which were stored deep-frozen
                                                                        in a customs warehouse in the Community and
2. order the Portuguese Republic to pay the costs.                      subsequently presented for admission to free
                                                                        circulation in a thawed condition, are to be classified
                                                                        under heading No 0802?
Pleas in law and main arguments adduced in support:
                                                                   2. If not:
Under Articles 189 and 191 of the EC Treaty, the
abovementioned Commission Decision should have been
implemented by the Portuguese Republic, even if it did
have doubts concerning its legality. In Case C-330/97 (1)               Was Article 522(3) of Commission Regulation (EEC)
the Portuguese Republic did not claim that it was                       No 2454/93 of 2 July 1993 (OJ L 253, 11.10.1993,
absolutely impossible to implement the Decision, given                  p. 1), which has since been replaced by the new
that the fact that the undertaking was being wound up                   version of Article 522 introduced by Commission
(which as not relied upon in that respect) did not in any               Regulation (EEC) No 3254/94 of 19 December 1994
event constitute an insurmountable difficulty.                          (OJ L 346, 31.12.1994, p. 1), inoperative?