CELEX: C1998/209/31
Language: en
Date: 1998-07-04 00:00:00
Title: Action brought on 7 April 1998 by the Republic of Austria against the Commission of the European Communities (Case C-99/98)

C 209/16             EN                  Official Journal of the European Communities                                    4.7.98
    Exemptions from the one-month delay                                  an aid measure which the Commission has held to be
    r u l e f o r t h e d e d u c t i o n o f VAT f r o m                incompatible with the common market, it may itself,
    1 January 1989 onwards                                               in accordance with the fundamental principles of
                                                                         Community law, take this into account in order to
    The French Government points out that this measure                   waive reimbursement of the measure in question.
    enabled the PMU to deduct VAT paid on its
    purchases by reference to the month when those                  (1) OJ C 90, 26.3.1994, p. 23.
    purchases were made and not the following month,
    as would have been the normal rule.
    Since its inception in 1969, that cash-flow facility
    was offset, however, by the lodging of a permanent
    non-interest-bearing deposit with the Treasury.
                                                                    References for a preliminary ruling from the Consiglio di
                                                                    Stato (Council of State) by orders of that court of
    It is true, as the Court of First Instance observed, that
                                                                    20 January 1998, in the cases of (1) Questore (senior
    the Commission made a factual error in its decision
                                                                    police official), Macerata v. Claudio Peroni, (2) Questore,
    in so far as it stated that the Treasury deposit had
                                                                    Genoa v. Eliana Fasciolo, (3) Questore, Genoa v. Umberto
    only existed since 1989.
                                                                    Merlo, (4) Questore, Catanzaro v. Patrizia Caffarelli, (5)
                                                                    Questore, Milan v. Chiara Picerno, (6) Questore, Imperia
    The Commission considered that the measure at issue
                                                                    v. Gianluca Barrese, Andrea De Sanctis and SaS Riviera,
    constituted a State aid, compatible with the common
                                                                    (7) Questore, Pavia v. Giovanni Giacchetto and (8)
    market before 1989 by reason of the fact that any
                                                                               Questore, Savona v. Francesco Amato
    disturbance thereby caused to the common market
    was negligible. After 1 January 1989, by reason of                                (Case C-86/98 to C-93/98)
    the existence of the compensatory deposit with the                                       (98/C 209/30)
    Treasury, the Commission took the view that it no
    longer constituted State aid.
                                                                    Reference has been made to the Court of Justice of the
    The Court of First Instance annulled the                        European Communities by orders of the Consiglio di Stato
    Commission's assessment regarding the period after              of 20 January 1998, which were received at the Court
    1 January 1989 on the basis of factors essentially              Registry on 13 March 1998, for a preliminary ruling in
    related to the preceding period and the mere finding            the cases of (1) Questore, Macerata v. Claudio Peroni,
    that the compensation for the year 1989 had been                (2) Questore, Genoa v. Eliana Fasciolo, (3) Questore,
    inadequate.                                                     Genoa v. Umberto Merlo, (4) Questore, Catanzaro v.
                                                                    Patrizia Caffarelli, (5) Questore, Milan v. Chiara Picerno,
    However, the Court of First Instance could not rely             (6) Questore, Imperia v. Gianluca Barrese, Andrea De
    solely on those factors in order to infer that the              Sanctis and SaS Riviera, (7) Questore, Pavia v. Giovanni
    Commission's assessment in respect of the entire                Giacchetto and (8) Questore, Savona v. Francesco Amato
    period after 1 January 1989 was erroneous. In this              on the following question:
    respect also the judgment of the Court of First
    Instance is vitiated by flawed reasoning and by an              Do the Treaty provisions on the provision of services
    inadequate statement of grounds.                                preclude rules such as the Italian betting legislation in
                                                                    view of the social policy concerns and of the concern to
(B) Recovery of aid which is incompatible with the                  prevent fraud that justify it?
    common market
    Since the Commission found in its Decision that the
    PMU's exemption from the housing levy as from
    1989 was incompatible with the Treaty, but that the
    recipient was required to repay amounts involved
    only with effect from the date when the procedure               Action brought on 7 April 1998 by the Republic of
    was opened in 1991, by reason of the fact that it                     Austria against the Commission of the European
    could legitimately have entertained expectations                                          Communities
    based on the earlier decision of the Conseil d'EÂtat,                                   (Case C-99/98)
    the Court of First Instance essentially held that the                                    (98/C 209/31)
    Commission could not itself take into account the
    recipient's legitimate expectations, as relied upon by
    the Member State, in order to dismiss the                       An action against the Commission of the European
    requirement to repay aid which it deemed                        Communities was brought before the Court of Justice of
    incompatible with the common market.                            the European Communities on 7 April 1998 by the
                                                                    Republic of Austria, represented by Dr. Wolf Okresek,
    The French Government believes that the judgment                Head of Section, Director of the Constitutional Section of
    of the Court of First Instance is also vitiated in this         the Office of the Federal Chancellor of the Republic of
    respect by an error of law and that when the                    Austria, with an address for service in Luxembourg at the
    Commission is advised by a Member State of                      office of Dr. Josef Magerl, Ambassador, Austrian Embassy,
    legitimate expectations on the part of the recipient of         3 Rue des Bains.
 ---pagebreak--- 4.7.98                EN                 Official Journal of the European Communities                                      C 209/17
The applicant claims that the Court should:                         Communities on 9 April 1998 by the Kingdom of Sweden,
                                                                    represented by Lotty Nordling, Rättschef, with an address
                                                                    for service in Luxembourg at the Swedish Embassy, 2 Rue
Ð annul Commission Decision SG(98) D/1124 of                        H. Heine, Luxembourg.
     9 February 1998 in its entirety on the grounds of
     breach of the EC Treaty and breach of essential
                                                                    The applicant claims that the Court should:
     procedural requirements and misuse of powers by the
     Commission,
                                                                    Ð pursuant to Article 173, declare invalid the 1998 TAC
                                                                         Regulation (EC No 45/98) (1), in so far as the
Ð order the Commission of the European Communities                       regulation provides for the allocation of cod in
     to pay the costs.                                                   zone IIIbcd, and
                                                                    Ð order the council to pay the Kingdom of Sweden's
Pleas in law and main arguments adduced in support:                      costs.
Breach of the EC Treaty, breach of essential procedural             Pleas in law and main arguments adduced in support:
requirements and misuse of powers: The aid which is the
subject of the proceedings is to be regarded as existing aid,       Article 121(1) of the Act concerning the conditions of
since the Commission failed to express its opinion on the           accession of the Republic of Austria, the Republic of
proposed aid within a reasonable time. The opening of a             Finland and the Kingdom of Sweden and the adjustments
formal examination procedure therefore conflicts with the           to the Treaties on which the European Union is founded,
Treaty, since the legally incorrect classification as a newly       as worded according to Council Decision 95/1/EC,
notified aid is thereby effected and the application of the         Euratom, ECSC (2), should be annulled:
prohibition of implementation under Article 93(3)
expressly stated. The applicant considers that by the letter
of 19 March 1997 at the latest it transmitted in full to the        For the year 1998 a quantity of 86 547 tonnes of
Commission all the information which the Commission                 Community cod is available for fishing in Community
required to be able to express an opinion on the                    waters in zone IIIb, c, d. According to the conditions laid
compatibility of the measure with the Treaty; none of the           down in Article 121(1) of the Act of Accession, Sweden
later questions' of the Commission were in any way                 should have been allocated 29 921 tonnes (0.35037 
material for the decision, but evidently served only to             50 000 + 0.4  36 947  400  1 976) of that amount.
delay a decision.                                                   This is taking into account the fact that the transfer of
                                                                    400 tonnes to Poland under the agreement between the
                                                                    Community and Poland has been deducted from Sweden's
The Commission asserts that it is entitled to oppose the            quota and that in 1998 1 976 tonnes of Sweden's quota is
implementation of the measures after proper notification            to be transferred to other Member States in accordance
by the Member State under the Lorenz procedure'. That              with the agreement made in connection with the signing
opposition is evidently intended to have the consequence            of the EEA Agreement. Instead, Sweden has been allocated
that thereafter (ex tunc or ex nunc?) there is no existing          under Regulation (EC) No 45/98 29 246 tonnes, which is
aid. That follows from the final paragraph of the                   675 tonnes less than results from the Act of Accession.
Background' section of the contested decision and from
the last sentence of Point 2.1 and the last sentence of             (1) Council Regulation (EC) No 45/98 of 19 December 1997
Point 5.1 of the Commission's Guidelines'. In the                      fixing, for certain fish stocks and groups of fish stocks, the
applicant's opinion, there is no such right of opposition;              total allowable catches for 1998 and certain conditions under
moreover, even supposing that it did exist as stated in the             which they may be fished (OJ L 12, 19.1.1998, p. 1).
                                                                    (2) OJ L 1, 1.1.1995, p. 1.
Commission's Guidelines', it was exercised too late, and
is therefore of no effect.
                                                                    Reference for a preliminary ruling from the Bundes-
                                                                    gerichtshof by order of that court of 5 March 1998 in the
Action brought on 9 April 1998 by the Kingdom of                    case of Union Deutsche Lebensmittelwerke GmbH v.
     Sweden against the Council of the European Union                   Schutzverband gegen Unwesen in der Wirtschaft e.V.
                       (Case C-100/98)                                                       (Case C-101/98)
                                                                                               (98/C 209/33)
                        (98/C 209/32)
                                                                    Reference has been made to the Court of Justice of the
An action against the Council of the European Union was             European Communities by an order of the 1st Civil
brought before the Court of Justice of the European                 Chamber of the Bundesgerichtshof (Federal Court of