CELEX: C2000/149/25
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-39/00 P: Appeal brought on 11 February 2000 by Service pour le Groupement d'Acquisitions (SGA) against the judgment delivered on 13 December 2000 by the First Chamber of the Court of First Instance of the European Communities in Joined Cases T-189/95, T-39/96 and T-123/96, brought by Service pour le Groupement d'Acquisitions (SGA) against Commission of the European Communities

27.5.2000              EN                     Official Journal of the European Communities                                          C 149/15
2. Order the defendant institution to pay the costs.                     — (In the alternative) The PTA 58 billion paid is justified even
                                                                              if it is accepted that it cannot be paid alongside general tax
                                                                              credits. Breach of the principle that no one may renege on
                                                                              his own decisions (legitimate expectations) and manifest
                                                                              error of assessment: The PTA 58 billion granted was not
                                                                              calculated by reference to the 28 % of forecast losses of the
                                                                              shipyards from 1995 to 1998, but rather, an overall
                                                                              amount to be paid as aid was negotiated and granted.
Pleas in law and main arguments
— Improper procedure and breach of the principles of                     (1) of 2 June 1997 on aid to certain shipyards under restructuring —
    legitimate expectations, legal certainty and sound adminis-              OJ 1997 L 148, 6. 6. 1997, p. 1
    tration: if the incorporation (in late 1997) of shipyards into
    SEPI resulted in an immediate and automatic reduction in
    the aid granted to compensate for the loss of tax credits
    (from 1 August 1995 when the shipyards became part of
    a State organisation which was not considered a group
    covered by the tax consolidation system) then the Com-
    mission’s departments should not have acted as they did:
    they should either have advised the Kingdom of Spain of
    their interpretation of the situation or commenced the
    procedure for the review of certain aid declared compatible
    (‘existing aid’) pursuant to Article 88(1) EC and the case-
    law of the Court of Justice.
                                                                         Appeal brought on 11 February 2000 by Service pour le
                                                                         Groupement d’Acquisitions (SGA) against the judgment
                                                                         delivered on 13 December 2000 by the First Chamber of
— (In the alternative) Failure to state any reasons relating to          the Court of First Instance of the European Communities
    the effects of the aid declared incompatible.                        in Joined Cases T-189/95, T-39/96 and T-123/96, brought
                                                                         by Service pour le Groupement d’Acquisitions (SGA)
                                                                             against Commission of the European Communities
— Breach of Article 92(1) and (3) of the EC Treaty (now
    Article 87(1) and (3) EC), of Council Regulation                                               (Case C-39/00 P)
    No 1013/97 (1) and of the principle of legitimate expec-
    tations:
                                                                                                   (2000/C 149/25)
    1. The PTA 58 billion in aid granted cannot be considered            An appeal against the judgment delivered on 13 December
         in isolation, purely and simply as compensation for             2000 by the First Chamber of the Court of First Instance of
         the tax credits which the shipyards had to lose, but            the European Communities in Joined Cases T-189/95, T-39/96
         must be viewed as the outcome of overall negotiations.          and T-123/96, brought by Service pour le Groupement
         In failing to do so the Commission has breached                 d’Acquisitions (SGA) against Commission of the European
         Council Regulation 1013/97 and the principle of                 Communities was brought before the Court of Justice of the
         legitimate expectations arising from its Decision defini-       European Communities on 11 February 2000 by Service pour
         tively authorising aid of a specific amount.                    le Groupement d’Acquisitions (SGA), represented by SCP
                                                                         Fourgoux & Associates, of the Paris Bar, with an address for
                                                                         service in Luxembourg at the Chambers of Pierrot Schiltz, 4
                                                                         Rue Béatrix de Bourbon.
    2. The Commission’s interpretation of the limit on aid
         granted as a maximum breaches Article 92(3) of the
         EC Treaty and the principles of legal certainty and             The appellant claims that the Court should:
         legitimate expectations as it undermines the definitive
         nature of the Decision granting aid.
                                                                         — set aside the judgment of the Court of First Instance of
                                                                              13 December 1999 in Joined Cases T-189/95, T-39/96
                                                                              and T-123/96;
    3. The Commission includes in the aid granted amounts
         paid under a general scheme which do not constitute
         aid. This breaches Article 92(1) of the EC Treaty.              — order the Commission to pay all the costs.
 ---pagebreak--- C 149/16              EN                     Official Journal of the European Communities                                      27.5.2000
Pleas in law and main arguments                                         — The Court was wrong to dismiss the claim for damages
                                                                            solely on the ground that the Commission’s conduct could
                                                                            not constitute a wrongful act entailing the liability of
                                                                            the Community because the claims for annulment were
                                                                            dismissed and because the Commission is not obliged by
— Breach of essential procedural requirements and funda-                    Article 3 of Regulation No 17 to take a decision as to
    mental rights: the requirements of the right to a fair                  whether the alleged infringement took place or not. That
    hearing, respect for the rights of the defence and the need             argument is, moreover, unrelated to the dismissal of the
    to observe the audi alteram partem rule, preclude the                   application for interim measures, which of course does not
    prohibition of the production, after the hearing and before             require a decision first to be taken as to whether the alleged
    the judgment, of a document furnished voluntarily by a                  infringement took place as a finding that it is based on
    party for the debate and discussed before the Court. There              ‘substantial’‘well-documented’ evidence, as in the present
    can be no fair hearing if the court fails to consider a                 case, is sufficient, as acknowledged by the Commission
    document provided freely for the purposes of the debate                 whose opinion is corroborated by the document put
    by a party (a fortiori where the party is one of the                    forward ‘in error’ and then withdrawn with the authoris-
    institutions), on the pretext that that document, on reflec-            ation of the Court.
    tion, would be embarrassing for the party producing it.
    The plea alleging that the time taken to deal with the
    complaint and conclude the proceedings was unreasonable
    must (not may) be raised by the Court of its own motion,
    contrary to what the Court of First Instance suggests, as it
    is always what is considered to be a breach of a fundamen-
    tal right whether with regard to the administrative or the
    judicial procedure. In the present case, a period of two
    years must be considered unreasonable for the preliminary
    examination as it far exceeds the period of reflection              Action brought on 11 February 2000 by the Commission
    necessary and a period of five and a half years is equally          of the European Communities against the French Republic
    unreasonable for the proceedings.
                                                                                                 (Case C-40/00)
— Manifest error regarding the probative force of the evidence                                  (2000/C 149/26)
    produced by the complainant.
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 11 February
— Manifest error in the assessment that there is insufficient           2000 by the Commission of the European Communities,
    Community interest and that there is a discretion to refrain        represented by Enrico Traversa, Legal Adviser, and Christophe
    from ordering the cessation of serious infringements on             Giolito, of its Legal Service, acting as Agents, with an address
    the pretext of establishing priorities: the Court made an           for service in Luxembourg at the office of Carlos Gómez de la
    error of assessment of fact and law in taking the view              Cruz, Wagner Centre, Kirchberg.
    that the Commission was entitled not to pursue the
    infringements committed by PSA and to choose to deal
    instead with the Volkswagen file. As regards the centre of          The applicant claims that the Court should:
    gravity for the infringement, it cannot be limited to France,
    given that pressure is put on foreign dealers in other
    Member States and that the infringement is committed
    primarily at that level, thus outside France, so that,              — declare that by reintroducing from 1 January 1998 a total
    because of the cross-border nature of the infringement the              prohibition on the right to deduct VAT on gas oil used as
    Commission was best-placed to deal with the file and make               fuel for vehicles on the purchase of which no VAT is
    the investigations pursuant inter alia to Article 5 of the EC           deductible after having introduced a partial right to deduct
    Treaty.                                                                 several times the French Republic has failed to fulfil its
                                                                            obligations under Article 17(2) of the Sixth Council
                                                                            Directive 77/388/EEC of 17 May 1977 on the harmon-
                                                                            ization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax:
— Manifest error as regards interim measures: if the Court                  uniform basis of assessment (OJ 1977 L 145, p. 1);
    upholds the above pleas it cannot but uphold the plea
    alleging that there was an error in refusing to order interim
    measures.                                                           — order the French Republic to pay the costs.