CELEX: C1996/108/08
Language: en
Date: 1996-04-13 00:00:00
Title: Action brought on 15 February 1996 by the Federal Republic of Germany against the Commission of the European Communities (Case C-46/96)

No C 108 /4              EN                   Official Journal of the European Communities                                      13 . 4 . 96
right to a fair hearing, the right of each party to be heard, the        impervious merely in theory, or impervious in theory and in
principle of the equality of both parties before the court and           practice ?
the obligation to give an adequate statement of reasons . In
any event, the Court of First Instance failed :                          (') OJ 1985 L 15 , p . 16 .
— to allow the appellants access to the data on the basis of
       which the Commission determined the basic exchange
       rates used in order to fix the weightings referred to in the      Reference for a preliminary ruling from the Tribunale Civile
       Regulations at issue and, consequently, to enable the             e Penale di Venezia by order of that court of 2 February
       appellants to submit observations in that regard ,                         1996 in the case of Immobiliare S.I.F. SpA v.
                                                                                   Amministrazione delle Finanze dello Stato
— to make an accurate and impartial examination of all the
       information relevant to the cases,                                                           ( Case C-42/ 96 )
                                                                                                      ( 96/C 108/07
— to take into account many of the arguments adduced by
       the appellants,                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale Civile
— to give reasons — or, at any rate, to give adequate                    e Penale di Venezia ( Civil and Criminal Court, Venice ) of
       reasons — for its own decision, which is based on                 2 February 1996 , which was received at the Court Registry
       assertions which not only disregard the points made by            on 13 February 1 996 , for a preliminary ruling in the case of
       the appellants, but are also, in more than one instance,          Immobiliare S.I. F. SpA v. Amministrazione delle Finanze
       tautologous and/or subjective .                                   dello Stato, in which the Court is requested to :
The Court of First Instance has not only failed to comply                'give a ruling on the question concerning the application of
with obligations specifically incumbent upon it, but has                 Articles 4, 7 and 10 of Council Directive 69/335/EEC of
also, by making such a ruling, enabled a factual situation to            17 July 1969 (^ concerning indirect taxes on the raising of
persist which is contrary to Community law.                              capital, as amended by Council Directive 73/80/EEC of
                                                                         9 April 1973 ( 2 ) in the case brought by the plaintiff and on
(') OJ No L 383 of 29 . 12 . 1992 , p . 1 .                              whether the application of those provisions precludes the
( 2 ) Ibid ., p . 9 .                                                    charging of any other taxation, in particular the taxes
( 3 ) Ibid ., p . 11 .                                                   charged by the Italian Registry Office, including Invim
                                                                         (Imposta communale sull'incremento di valore dei beni
                                                                         immobili — municipal tax on the increase in value of
                                                                         immovables ); if so, is the applicable rate 2 % or the reduced
                                                                         rate ?'
Reference for a preliminary ruling from the Landgericht
Hamburg by order of that court of 4 October 1995 in the                  (') OJ, English Special Edition 1969 ( II ), p . 412 .
       case of V.A.G. Hàndlerbeirat e . V. v. SYD-Consult                ( 2 ) OJ 1973 L 103 , p . 15 .
                           ( Case C-41 /96 )
                             ( 96/C 108 /06 )
                                                                         Action brought on 15 February 1996 by the Federal
Reference has been made to the Court of Justice of the                   Republic of Germany against the Commission of the
European Communities by an order of the Landgericht                                           European Communities
( Regional Court) Hamburg of 4 October 1995 , which was                                               Case C-46/96 )
received at the Court Registry on 13 February 1996 , for a
preliminary ruling in the case of V.A.G. Hàndlerbeirat e.V.                                           ( 96/C 108/08 )
v . SYD-Consult on the following question:
                                                                         An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of the
in the light of the judgment of the Court of Justice of
                                                                         European Communities on 15 February 1 996 by the Federal
 13 January 1994 in Case C-376/92 Metro SB-Grotëmàrkte
v. Cartier, is it compatible with Community law, in
                                                                         Republic of Germany, represented by Ernst Rôder,
                                                                         Ministerialrat in the Federal Ministry of Economic
particular with the principle of the unrestricted and uniform            Affairs .
application of Community law, if German national law
applies in such a way that proceedings for an injunction                 The applicant claims that the Court should :
restraining the distribution of products covered by a
selective distribution system exempted from application of               — annul Decision (K 95 ) 3319 final of the Commission of
Article 85 ( 1 ) by a block exemption of the Commission of                     29 November 1995 concerning fiscal aid in the field of
the European Communities (') may be brought against                            depreciation favouring German undertakings ( J ),
outsiders who obtain those products outside such a selective
distribution system only if — in addition to satisfying the              — order the defendant to pay the costs .
 further requirements of Paragraph 1 of the Gesetz gegen den             Pleas in law and main arguments adduced in support:
 unlauteren Wettbewerb ( Law against Unfair Competition,
UWG ) — the selective distribution system is impervious                  Infringement of the EC Treaty ( the constituent criteria
 ( liickenlos ), specific reference being made to the alternative        laid down in Article 92 ( 1 ) of the EC Treaty are not
 of the selective distribution system being required to be               fulfilled ):
 ---pagebreak--- 13 . 4 . 96             | EN                   Official Journal of the European Communities                                  No C 108/5
— the disputed possibility for depreciation, afforded by                  Appeal brought on 19 February 1996 by Windpark
       Paragraph 82 ( f) of the Einkommensteuer-Durcb­                    Groothusen GmbH & Co. Betriebs KG against the
       fiihrungsverordnung ( income tax implementation                    judgment delivered on 13 December 1995 by the First
       regulation ), is consistent with the inherent logic of the         Chamber of the Court of First Instance of the European
       German tax system, and does not diverge fundamentally                   Communities in Case T-109/94 between Windpark
       from normal ( linear, degressive ) depreciation methods .                  Groothusen GmbH & Co . Betriebs KG and the
       In so far as the Commission considers that the tax                           Commission of the European Communities
       systems distort the conditions of competition in the                                       ( Case C-48/96 P )
       common market, the relevant legislative provisions of
       the Member States should have been assimilated in                                             ( 96/C 108/09 )
       accordance with Article 101 of the EC Treaty. In the
       final analysis, singling out individual elements of tax law        An appeal against the judgment delivered on 13 December
       undermines the national tax system and amounts to a                1995 by the First Chamber of the Court of First Instance of
       disregard of the national fiscal sovereignty retained by           the European Communities in Case T-109/94 between
       the Member States,                                                 Windpark Groothusen GmbH & Co . Betriebs KG and the
                                                                          Commission of the European Communities (') was brought
— even if it were permissible to single out that individual               before the Court of Justice of the European Communities on
       national tax provision from the non-harmonized rules               19 February 1996 by Windpark Groothusen GmbH & Co .
       on the taxation of undertakings, the Commission should             Betriebs KG, of Groothusen-Krummhorn ( Germany )
       not have classified Paragraph 82 ( f) of the Ein­                  represented by Detlef Schumacher and Benno Grunewald,
       kommensteuer-Durcbfuhrungsverordnung as aid . The                  Rechtsanwàlte, Heidelberger StraEe 7, D-28203 Bremen .
       possibility for depreciation afforded by Paragraph 82 ( f)
       of the Einkommensteuer-Durchfiihrungsverordnung
       does not give rise to any transfer at the State's expense ( in     The appellant claims that the Court should :
       the form of a shortfall in tax revenue ); the fiscal effects of
       degressive depreciation — to which the Commission                  1 , set aside the contested judgment of 13 December
       does not object, and which is feasible in all sectors - and              1995 ;
       of depreciation pursuant to Paragraph 82 ( f) of the
       Einkommensteuer-Durchfubrungsverordnung are on                     2 , annul the decisions of the Commission refusing to grant
       the whole equivalent. Depreciation pursuant to
                                                                               the appellant aid pursuant to the Thermie Regulation
       Paragraph 82 ( f) of the Einkommensteuer-Durch­                          ( notified by communication of 13 January 1994 from
       fubrungsverordnung does not increase the volume of                       the Energy Directorate-General supplementing the
       depreciation applied to the assets of undertakings; it
                                                                                communication of 5 August 1993 from the Energy
       does not result, over the service life of an aircraft, or the
                                                                                Directorate-General );
       period during which it is retained by the undertaking, in
       any reduction of the tax due , nor does it afford the
        undertaking — in relation to the service life or period of         3 , order the respondent to adopt a decision in favour of the
        retention of the asset — any interest advantage arising                 appellant, with due regard to the interpretation of the
        from the depreciation .                                                 law undertaken by the Court of Justice, providing for
                                                                                the grant of aid in a sum not exceeding ECU
        Even if it were in fact the case that aid to a specific sector          918 028 ;
        is involved, there would in any event be no question of
        any distortion of competition, since the German rules on           4 , order the respondent to pay the costs of the proceedings
        depreciation are less favourable than those applied in                  at first instance and of the appeal .
        numerous other Member States of the Community, and
        Germany has, in comparative terms , one of the highest
        tax burdens,                                                       Pleas in law and main arguments adduced in support:
— the contested decision does not contain a sufficient                     — infringement of the right to full legal protection,
        statement of reasons; in particular, the Commission does
        not attach sufficient weight to the results of the                 — infringement of the fifth paragraph of Article 173 of the
        investigations submitted to it, despite the fact that one of            EC Treaty: that provision does not require a person who
        them was commissioned by the defendant itself,                          is directly and individually concerned by a decision to try
                                                                                to ascertain the nature of the decision and the reasons on
— ( in the alternative ) Article 92 ( 3 ) (c ) of the EC Treaty has             which it is based . On the contrary, the legal aspects are
        wrongly been left out of consideration . The special                    complied with where , at the applicant's request, the
        depreciation at issue promotes the protection of the                     decision and the reasons on which it is based are
        environment ( acquisition of new aircraft which                         communicated,
        experience has shown to be quieter and more economic
        to use ).
                                                                           — infringement of the rule requiring a statement of reasons
                                                                                 to be given,
 ( 1 ) Only civil aviation undertakings are involved .
                                                                           — infringement of the fundamental legal rules concerning
                                                                                 the right to a fair hearing,