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7.8.

1999 EN Official Journal of the European Communities C 226/13

Action brought on 4 May 1999 by the Portuguese — The applicable system of landing taxes at Portuguese
Republic against Commission of the European Communi- airports is not discriminatory or the ground of the
ties nationality of users: the differentiation between domestic
and international traffic does not infringe Article 12 EC (ex
Article 6) given that, under Article 3 of Council Regulation
(Case C-163/99) (EEC) No 2408/92 (1), Community air carriers have right
of access to operate internal routes on an entirely equal
footing with national operators. The 50 % reduction of the
(1999/C 226/21) taxes on domestic flights affects, first and foremost,
connections between continental Portugal and the Auton-
omous Regions and between the Autonomous Regions,
An action against the Commission of the European Communi- which, because of their insularity, have no alternative to
ties was brought before the Court of Justice of the European air transport. Other domestic flights also benefit from such
Communities on 4 May 1999 by the Portuguese Republic, a reduction because they are short-haul flights whose fares
represented by Dr Luı́s Fernandes. Dr Maria Luı́sa Duarte and must be kept low. The validity of these reasons and their
Dr Fátima Viegas, acting as Agents with an address for service compatibility with the Treaty is inextricably linked with
in Luxembourg at the Portuguese Embassy, 33 Allée Scheffer. the overriding objective of economic and social cohesion
(see Article 3(k) EC (formerly 3(j))) and with the acknowl-
edgement in the Treaty of the status as outermost regions
The applicant claims that the Court should: of the Azores and Madeira (see Article 227 of the EC
Treaty — now, after amendment, Art. 299(2) EC).

— Uphold the present action and, accordingly, annul the — The applicable system of landing taxes at Portuguese
Commission’s decision of 10 February 1999 relating to a airports does not entail abuse of a dominant position: the
proceeding under Article 90 of the EC Treaty (IV/35.703 interpretation which the Commission puts forward in the
— Portuguese airports). contested decision of Article 82 EC (ex Article 86), in
conjunction with Article 86 EC (ex Article 90), is contrary
to the principle of neutrality, as laid clown in Article 295
EC (ex Article 222). Undertakings operating exclusive
Pleas in law and main arguments concessions and public undertakings are otherwise pre-
vented from resorting to business strategies, such as
bulk-order discounts which are widely used by undertak-
(Anent procedure followed and measures adopted by the ings and are dictated by the economic requirement to
Commission) show a profit.

— Breach of the obligation to provide reasons.


(1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on access
for Community air carriers to intra-Community air routes, OJ
— Breach of the principle of proportionality: since the 1992 L 240, p. 8.
distinction between domestic and international traffic for
the purpose of levying airport taxes is provided for in the
legislation applicable to most airports of the European
Union, the most appropriate and least onerous measure
would have been a directive. By imposing on a Member
State the specific obligation of modifying unilaterally the
amount or the methods for implementing airport landing
taxes, the Commission disregarded the detrimental and
serious effect of such a measure on the competitive
conditions between air carriers on the Community market.
Only a directive, which prescribes the same period for all
the Member States for its implementation, can ensure the
necessary harmonisation of national laws and that changes Action brought on 4 May 1999 by the Republic of Austria
will take place at the same time, as required by the rules of against the Commission of the European Communities
fair competition in the field of airport taxes and of air
transport in general.
(Case C-165/99)
— Abuse of process: a decision adopted under Article 86(3)
(ex Article 90) only constitutes a fair and lawful alternative
to infringement proceedings where such a decision is a (1999/C 226/22)
necessary, adequate and proportionate measure.

An action against the Commission of the European Communi-


(Anent the lack of substantive grounds for the adoption of a ties was brought before the Court of Justice of the European
decision finding an infringement of Article 86(1) EC (ex Article Communities on 4 May 1999 by the Republic of Austria,
90) and Article 82 EC (ex Article 86)) represented by Dr Harald Dossi, of the Constitutional Service
C 226/14 EN Official Journal of the European Communities 7.8.1999

of the Federal Chancellor’s Office, acting as Agent, assisted by — (In the alternative) Infringements of the law and inadequate
Dr Michael Schütte, Rechtsanwalt, with an address for service statement of reasons in the application of Article 92(3) of
in Luxembourg al the office of Dr Josef Magerl, Ambassador, the EC Treaty.
at the Austrian Embassy, 3 Rue des Bains.
(1) Not published in the Official Journal.

The applicant claims that the Court should:

— Annul Commission Decision K (1999) 325 endg. of


3 February 1999 (1) on State aid granted by Austria in the
form of an exemption from drinks tax on wine and other
fermented drinks in the case of direct sale to the consumer
at the place of production; Appeal brought on 6 May 1999 by Clauni S.A., Lomagenais
S.A., Jean-Marie Bissières and André Lompech against the
order made on 9 March 1999 by the Fourth Chamber of
the Court of First Instance of the European Communities
— Order the Commission to pay the costs. in Case T-205/98 between Clauni S.A. and Others and the
Commission of the European Communities

(Case C-170/99 P)
Pleas in law and main arguments
(1999/C 226/23)
— Breach of essential procedural requirements: The Com-
mission made incorrect findings of fact on a number of An appeal against the order made on 9 March 1999 by the
points of importance for the question of classifying the Fourth Chamber of the Court of First Instance of the European
rule as a general measure or as aid and in examining Communities in Case T-205/98 between Clauni S.A and
whether there is significant distortion of competition and Others and the Commission of the European Communities
effect on trade. was brought before the Court of Justice of the European
Communities on 6 May 1999 by Clauni S.A. Lomagenais S.A.,
Jean-Marie Bissières and André Lompech, represented by
— Infringement of the EC Treaty as a result of incorrect Daniel Veyssière, of the Agen Bar, with an address for service
application of Article 92(1): The exemption from drinks in Luxembourg at the Chambers of Aloïse May 31 Grand-Rue.
tax of on-the-spot sales of wine does not constitute an
exception to the principle that sales of wine at the first The appellants claim that the Court should:
lever of trace are not subject to drinks tax. The tax
exemption for on-the-spot sales is also justified from the — set aside in its entirety the order declaring the action
point of view of efficiency. If adverse effects on competition inadmissible;
occur as a result of general measures, the basis for
eliminating those adverse effects is not the State aid
procedure but, if necessary, a procedure for approximation — allow the appellants’ claim for a rebate (1) or, more
of laws. precisely, their application for annulment of the implicit
decision rejecting their claim for a rebate;

It is not evident why an exemption from drinks tax which — grant the application for annulment of the Commission’s
directly benefits the final consumer should lead to at decision refusing to issue import certificates based on the
quota for Poland, which is the corollary of that claim for a
least indirect advantages for farmers. It depends on the
rebate;
individual case to what extent a wine-grower can obtain a
higher remuneration because no drinks tax is charged. In
any event, a higher remuneration is not attributable to the — order the Commission to pay the costs.
State even indirectly.

Pleas in law and main arguments


— Inadequate statement of reasons, breach of Article 190 of
the EC Treaty: The Commission failed to address the — Material error and contradiction in the grounds stated as
arguments of the Republic of Austria adequately or in regards the chronology of the facts, giving rise to an
some cases at all. erroneous computation of the procedural time-limits.

— Distortion of the claim for a rebate and of the appellants’


It erred in law by assuming that it did not have to apply choice of procedure:
the provisions or the common organisation of the market
in wine; according to the case-law of the Court of Justice, — the applicant, taking note of the implicit initial refusal
however, the rules on State aid apply only secondarily of the Commission to allocate the goods in issue to the
compared to the Provisions on the organisation of the Community quota, expressly requested the Com-
market. mission, in its rebate application of 20 December