Unión General de Trabajadores de La Rioja (UGT-Rioja) and Others v Juntas Generales del Territorio Histórico de Vizcaya and Others.
Date: 2008-09-11
39. It is clear from both the wording and the scheme of Article 234 EC that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others  [1995] ECR I‑1567, paragraph 28; Case C‑314/96 Djabali  [1998] ECR I‑1149, paragraph 18; and Case C‑225/02 García Blanco  [2005] ECR I‑523, paragraph 27).
42. Regarding the claim that the answer to the question referred is clear, it should be pointed out that, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law and where it leaves no scope for any reasonable doubt, first, a court or tribunal against the decisions of which there is no judicial remedy under national law is not required, in certain circumstances, to make a preliminary reference (see, to that effect, Case 283/81 Cilfit and Others  [1982] ECR 3415, paragraphs 14 and 16 to 20) and, second, this Court may give its decision by reasoned order pursuant to Article 104(3) of its Rules of Procedure.
43. However, those circumstances in no way prevent a national court from making a reference for a preliminary ruling to this Court (see, to that effect, Cilfit and Others , paragraph 15) and do not have the effect of depriving this Court of jurisdiction to rule on such a question.
46. As the Court indicated at paragraph 56 of its judgment in Portugal  v Commission , in order to determine whether the measure at issue is selective, it is appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation.
47. In that connection, the reference framework need not necessarily be defined within the limits of the Member State concerned, so that a measure conferring an advantage in only one part of the national territory is not selective on that ground alone for the purposes of Article 87(1) EC ( Portugal  v Commission , paragraph 57).
48. It is possible that an infra-State body enjoys a legal and factual status which makes it sufficiently autonomous in relation to the central government of a Member State, with the result that, by the measures it adopts, it is that body and not the central government which plays a fundamental role in the definition of the political and economic environment in which undertakings operate ( Portugal  v Commission , paragraph 58).
49. The Court described, at paragraph 65 of the judgment in Portugal  v Commission , the situation in which a regional or local authority adopts, in the exercise of sufficiently autonomous powers in relation to the central power, a tax rate lower than the national rate and which is applicable only to undertakings present in the territory within its competence.
50. In the latter situation, the legal framework appropriate to determine the selectivity of a tax measure may be limited to the geographical area concerned where the infra-State body, in particular on account of its status and powers, occupies a fundamental role in the definition of the political and economic environment in which the undertakings present on the territory within its competence operate ( Portugal  v Commission , paragraph 66).
51. In order that a decision taken by a regional or local authority can be regarded as having been adopted in the exercise of sufficiently autonomous powers, that authority must first have, from a constitutional point of view, a political and administrative status which is distinct from that of the central government. Next, the decision must have been adopted without the central government being able to intervene directly as regards its content. Finally, the financial consequences of a reduction of the national tax rate for undertakings in the region must not be offset by aid or subsidies from other regions or central government ( Portugal  v Commission , paragraph 67). Those three conditions are commonly considered to be the criteria of institutional, procedural, and economic and financial autonomy.
52. The Court found, in paragraph 68 of its judgment in Portugal  v Commission , that a political and fiscal independence of central government which is sufficient as regards the application of Community rules on State aid presupposes not only that the infra‑State body has powers in the territory within its competence to adopt measures reducing the tax rate, regardless of any considerations related to the conduct of the central State, but also that, in addition, it assumes the political and financial consequences of such a measure.
The lack of a precondition
53. Contrary to the Commission’s contention, paragraphs 58 and 66 of the judgment in Portugal  v Commission  do not lay down any precondition for the operation of the three criteria set out in paragraph 67 of that judgment.
80. The purpose of reviewing the legality of acts is to enforce compliance with the pre‑established limits on the areas of competence of the different State authorities, organs or bodies, not to determine those limits. As the Spanish Government stated at the hearing, the existence of judicial review is inherent in the existence of the rule of law.
94. The Commission bases its argument in that regard on the final sentence of paragraph 68 of Portugal  v Commission , according to which the infra‑State authority must have fiscal competence ‘regardless of any considerations related to the conduct of the central State’, a detail in the light of which the second condition set out in paragraph 67 of that judgment must be interpreted, namely the condition that the decision taken by the infra‑State body must have been adopted ‘without the central government being able to directly intervene as regards its content’.
– The Court’s reply
122. Having regard to all of the foregoing, the Commission concludes that the Historical Territories do not assume all the financial consequences of measures to reduce the tax rate or to increase authorised deductions. Consequently, the third condition set out in paragraph 67 of Portugal  v Commission  is not satisfied.
– The Court’s reply