C-204/03 Commission v Spain

JUDGMENT OF THE COURT (Third Chamber)

6 October 2005 *

In Case C-204/03,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 May 2003,

Commission of the European Communities, represented by E. Traversa and L. Lozano Palacios, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

defendant,

* Language of the case: Spanish.

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges,

Advocate General: M. Poiares Maduro, Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 10 March 2005,

gives the following

Judgment

Legal context and the dispute

1By its application, the Commission of the European Communities seeks a declaration from the Court that, by providing for a deductible proportion of value added tax ('VAT') for taxable persons who carry out only taxable transactions, and by laying down a special rule which limits the right to deduct VAT on the purchase of goods and services which are subsidised, the Kingdom of Spain has failed to fulfil its obligations under Community law, and, in particular, Articles 17(2) and (5) and 19 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 95/7/EC of 10 April 1995 (OJ 1995 L 102, p. 18; 'the Sixth Directive')·

Legal framework

Community legislation

2Article 11A(1)(a) of the Sixth Directive provides that the taxable amount shall be:

'in respect of supplies of goods and services ... everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies including subsidies directly linked to the price of such supplies'.

3Article 17(2)(a) of the directive, in the version resulting from Article 28f thereof, provides that, '[i]n so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay ... value added tax due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person'.

4Article 17(5) provides that:

'As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which value added tax is deductible, and for transactions in respect of which value added tax is not deductible, only such proportion of the value added tax shall be deductible as is attributable to the former transactions.

This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person.

...'

5Article 19(1) of the Sixth Directive, entitled 'Calculation of the deductible proportion', states that:

'The proportion deductible under the first subparagraph of Article 17(5) shall be made up of a fraction having:

— as numerator, the total amount, exclusive of value added tax, of turnover per year attributable to transactions in respect of which value added tax is deductible under Article 17(2) and (3);

— as denominator, the total amount, exclusive of value added tax, of turnover per year attributable to transactions included in the numerator and to transactions in respect of which value added tax is not deductible. The Member States may also include in the denominator the amount of subsidies, other than those specified in Article 11A(1)(a).

...'

National legislation

6Article 102 of Law No 37/1992 of 28 December 1992 on value added tax (BOE No 312 of 29 December 1992, p. 44247), as amended by Law No 66/1997 of 30 December 1997 (BOE No 313 of 31 December 1997, p. 38517; 'Law No 37/1992'), is devoted to the proportion rule governing deduction of that tax. The first paragraph of that article states that:

'The proportion rule shall apply where the taxable person in the course of his trade or business carries out both supplies of goods or services in respect of which value added tax is deductible and other transactions of a similar nature in respect of which it is not.

The proportion rule shall also apply where the taxable person receives subsidies which, in accordance with Article 78(2) (3) of this Law, do not form part of the taxable amount, inasmuch as they are intended to fund the taxable person's trade or business activities.'

7Article 104 of Law No 37/1992 refers to the general proportion. The second paragraph of Article 104(2)(2) states that:

'Capital subsidies shall be included in the denominator of the proportion, but they may be imputed in fifths to the tax year during which they were received and to the four following tax years. Nevertheless, capital subsidies granted in order to fund the purchase of certain goods or services, acquired in connection with transactions that are taxable and not exempted from VAT, will reduce exclusively the amount of the deduction of VAT borne or paid in respect of those transactions, to the precise extent to which they have contributed to their funding.'

Pre-litigation procedure

8The Commission initiated the infringement procedure under Article 226 EC by a letter of formal notice sent to the Spanish Government on 20 April 2001, in which it maintained that Article 102 and the second paragraph of Article 104(2) (2) of Law No 37/1992 restrict, contrary to Articles 17(2) and (5) and 19 of the Sixth Directive, the right to deduct VAT.

9The Kingdom of Spain submitted its observations in response to that letter of formal notice by letter of 28 May 2001.

10Unsatisfied with that response, the Commission sent a reasoned opinion on 27 June 2002 requesting that Member State to adopt the measures necessary to comply with the opinion within two months of its notification.

11By letter of 20 September 2002, the Kingdom of Spain replied to the reasoned opinion, reiterating its disagreement with the position adopted by the Commission.

The action

Preliminary considerations

12It should be noted that the provisions of Law No 37/1992, referred to in paragraphs 6 and 7 of the present judgment, contain a general rule and a special rule.

13Under the general rule, laid down in Article 102 of the Law read in conjunction with the first sentence of the provisions of Article 104 of that same law, cited in paragraph 7 of the present judgment, subsidies to finance the trade or business of a taxable person, which do not form part of the basis of VAT assessment, are taken into account in the calculation of the deductible proportion in so far as they are part of the denominator of the portion which that proportion results from. Those subsidies thus generally diminish the right to deduct enjoyed by taxable persons. The latter consist not only of taxable persons who use the goods and services obtained as inputs to carry out, at the same time, transactions in respect of which VAT is deductible and other transactions of a similar nature in respect of which it is not ('mixed taxable persons'), but also taxable persons who use goods and services exclusively to carry out transactions in respect of which VAT is deductible ('fully taxable persons').

14The special rule is contained in the second sentence of the provisions of Article 104 of Law No 37/1992, cited in paragraph 7 of the present judgment. Under that rule, subsidies granted specifically to fund the purchase of certain goods or services acquired in connection with transactions that are taxable and not exempted from VAT reduce exclusively the amount of the deduction of VAT borne or paid in respect of those transactions, to the precise extent to which they have contributed to their funding. Consequently, in the case of a subsidy amounting, for example, to 20% of the purchase price of a good or service, the right to deduct the VAT specifically imposed on that good or service is reduced by 20%.

Arguments of the parties

15The Commission submits that the general rule laid down by Law No 37/1992 unlawfully extends the restriction of the right to deduct laid down in Article 17(5), read in conjunction with Article 19 of the Sixth Directive, by applying that restriction not only to mixed taxable persons but also to fully taxable persons. In addition, the special rule set out in that Law introduces a mechanism of deduction which is not provided for in the Sixth Directive and is thus contrary to it.

16The Spanish Government considers, for its part, that the Commission gives the Sixth Directive a literal interpretation which fails to take account of the objectives of the text and, in particular, the principle that VAT should be neutral.

17According to that government, Article 19 of the Sixth Directive does not simply constitute a rule for calculating the proportion mentioned in Article 17(5) of that directive aimed at calculating, in the case of mixed taxable persons, the proportion of taxed activities in respect of which VAT is deductible in relation to the total amount of the taxable person's taxed and exempted activities. By providing in Article 19 that Member States may include in the denominator of the proportion subsidies which are not directly linked to the price of the transactions and which are therefore not included in the taxable amount as defined in Article 11A(1)(a) of that directive, the legislature introduced an exception to the rule laid down in Article 17(5) as regards mixed taxable persons by allowing restrictions of the right to deduct of fully taxable persons.

is The Spanish Government submits that the purpose of Article 19 of the Sixth Directive is to allow Member States to re-establish the balance as regards competition and, in doing that, to observe the principle that tax should be neutral. In support of that view it cites the example of a transporter who obtains a subsidy to purchase a vehicle. The subsidy allows him to reduce the cost of his service and, thus, the amount of VAT applicable to it. Furthermore, if, with the help of that subsidy, the transporter can deduct the whole VAT on the amount spent on inputs, he gains a further advantage over his competitors who have not received subsidies.

19The Spanish Government adds that the special rule laid down in Law No 37/1992 provides for a restriction of the right to deduct which is more limited than that which results from the application of Article 19 of the Sixth Directive, since it concerns the deduction of VAT relating only to the goods or services obtained with the help of the subsidy and it has no impact on the deduction of tax as regards other goods or services obtained by the taxable person.

20As an ancillary point, the Spanish Government requests the Court, should it not agree with the interpretation which that government puts forward, to limit the effects in time of its judgment. The non-retroactive application of the effects of the judgment is justified, first, by the fact that the Spanish authorities acted in good faith in adopting the legislation at issue and, second, by the problems which the Court's judgment could give rise to.

Grounds

Findings of the Court

21Article 17(2) of the Sixth Directive sets out the principle of the right to deduct VAT. The latter concerns input tax on the goods and services used by taxable persons for the needs of their taxed transactions.

22Where the taxable person carries out, at the same time, transactions in respect of which VAT is deductible and exempted transactions in respect of which it is not, Article 17(5) of the directive states that only such proportion of the VAT shall be deductible as is attributable to the taxed transactions. That proportion is calculated according to the method laid down in Article 19 of the directive.

23As the Court has repeatedly pointed out, any limitation of the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the Sixth Directive (see, in particular, Case 50/87 Commission v France [1988] ECR 4797, paragraph 17, Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 18, and Case C-409/99 Metropol and Stadler [2002] ECR I-81, paragraph 42).

24In that regard, it must be noted that Article 19 of the Sixth Directive, entitled 'Calculation of the deductible proportion', refers expressly to Article 17(5) of that directive, to which it is wholly related.

25The provisions of the second indent of Article 19(1) on subsidies other than those specified in Article HA(l)(a) of the Sixth Directive, that is to say subsidies which are not included in the price of the good or service provided and which do not form part of the taxable amount, must be read in the light of Article 17(5). However, as is clear from its wording, Article 17(5) only applies to mixed taxable persons. It follows that, given that it is not an exception applicable to both mixed and fully taxable persons, the second indent of Article 19(1) permits limitations of the right to deduct, taking account of the subsidies thus defined, only in the case of mixed taxable persons.

26Consequently, by extending the restriction of the right to deduct to fully taxable persons, the general rule laid down in Law No 37/1992 introduces a restriction which goes beyond the one expressly provided for in Articles 17(5) and 19 of the Sixth Directive and infringes the provisions of the directive.

27In relation to the special rule set out in the Law, it is sufficient to point out that it introduces a mechanism for limiting the right to deduct which is not provided for in Articles 17(5) and 19 of the Sixth Directive or in any other provision of the directive. Consequently, such a mechanism is not authorised by the directive.

28The Spanish Government's argument that its interpretation of Article 19 of the Sixth Directive enables balance in terms of competition, and hence the principle that VAT should be neutral, to be observed must be rejected. The Member States are required to apply the Sixth Directive even if they consider it to be less than perfect. As indicated in Case C-388/98 Commission v Netherlands [2001] ECR I-8265, paragraphs 55 and 56, even if the interpretation put forward by certain Member States better served certain aims of the Sixth Directive, such as fiscal neutrality, the Member States may not disregard the provisions expressly laid down in that directive by introducing, in this case, limitations of the right to deduct other than those laid down in Articles 17 and 19 of that directive.

29As regards the restriction of the effects in time of the Court's judgment requested by the Spanish Government, it must be noted that it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to decide on such a restriction.

30In that regard, and as pointed out by the Advocate General in paragraph 24 of his Opinion, it must be established that the State authorities were prompted to adopt legislation or conduct contrary to Community law because of objective and significant uncertainty regarding the implications of the Community provisions concerned (see, to that effect, Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraph 92). However, there was no such uncertainty in this instance. It is thus not necessary to restrict the effects in time of the present judgment.

31In the light of those considerations, it must be held that, by providing for a deductible proportion of VAT for taxable persons who carry out only taxable transactions, and by laying down a special rule which limits the right to deduct VAT on the purchase of goods and services which are subsidised, the Kingdom of Spain has failed to fulfil its obligations under Community law, and, in particular, Articles 17(2) and (5) and 19 of the Sixth Directive.

Costs

32Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Spain has been unsuccessful in its pleas, the latter must be ordered to pay the costs.

Operative part

On those grounds, the Court (Third Chamber) hereby:

1. Declares that, by providing for a deductible proportion of value added tax for taxable persons who carry out only taxable transactions, and by laying down a special rule which limits the right to deduct VAT on the purchase of goods and services which are subsidised, the Kingdom of Spain has failed to fulfil its obligations under Community law, and, in particular, Articles 17(2) and (5) and 19 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995;

2. Orders the Kingdom of Spain to pay the costs.

[Signatures]

OPINION OF ADVOCATE GENERAL POIARES MADURO delivered on 10 March 2005

Introduction

1This action, brought pursuant to Article 226 EC, seeks a declaration that, by limiting the right to deduct value added tax ('VAT') of taxable persons in receipt of subsidies intended to fund their activities, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Articles 17 and 19 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment 2 ('the Sixth Directive').

I — The legal background and the pre-litigation procedure

A — The relevant provisions of Community law

2Article 17 of the Sixth Directive concerns the origin and scope of the right to deduct. According to the fifth paragraph:

'As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which value added tax is deductible, and for transactions in respect of which value added tax is not deductible, only such proportion of the value added tax shall be deductible as is attributable to the former transactions.

This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person.'

3Article 19(1) of the Directive lays down the detailed rules for calculating the deductible proportion as follows:

'The proportion deductible under the first subparagraph of Article 17(5) shall be made up of a fraction having:

— as numerator, the total amount, exclusive of value added tax, of turnover per year attributable to transactions in respect of which value added tax is deductible under Article 17(2) and (3),

— as denominator, the total amount, exclusive of value added tax, of turnover per year attributable to transactions included in the numerator and to transactions in respect of which value added tax is not deductible. The Member States may also include in the denominator the amount of subsidies, other than those specified in Article HA(1)(a).'

4Article HA(1)(a) provides that, so far as concerns transactions carried out within the territory of the country, the taxable amount is:

'in respect of supplies of goods and services ..., everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies including subsidies directly linked to the price of such supplies'.

B — The relevant provisions of national law

5It is apparent from the documents before the Court that Spanish Law No 37/1992 of 28 December 1992 on value added tax was amended by Law No 66/1997 of 30 December 1997 ('the law on VAT'), in order to introduce certain limitations on the right to deduct VAT paid by tradesmen and busi nessmen in receipt of subsidies which are intended to fund their trade or business activities and which do not form part of the taxable amount of their taxable transactions.

6Article 102(1) of this Law, as amended, provides:

'The proportion rule shall apply where the taxable person in the course of his trade or business carries out both supplies of goods or services in respect of which value added tax is deductible and other transactions of a similar nature in respect of which it is not.

The proportion rule shall also apply where the taxable person receives subsidies which, in accordance with Article 78(2)(3) of this Law, do not form part of the taxable amount, inasmuch as they are intended to fund the taxable person's trade or business activities'.

7Under Article 104(2) of that Law:

'Capital subsidies shall be included in the denominator of the proportion, but they may be appropriated in fifths to the tax year during which they were received and the four following tax years. Nevertheless, capital subsidies granted in order to fund the purchase of certain goods or services, acquired in connection with transactions that are taxable and not exempted from VAT will reduce exclusively the amount of the deduction of VAT borne or paid in respect of those transactions, to the precise extent to which they have contributed to their funding'.

C — The pre-litigation procedure

8The Commission of the European Communities sent the Kingdom of Spain a letter on 21 May 1999 requesting information about the interpretation of Article 104 of the Law on VAT. The Kingdom of Spain's answer took the form of a letter from the Directorate-General of Taxes of the Ministry of the Economy and Finance, dated 14 June 1999. Being unsatisfied with the replies given by the Spanish authorities, the Commission sent them a letter of formal notice on 20 April 2001 and then a reasoned opinion on 27 June 2002. In those several documents, the Commission alleged that, by maintaining in force the abovementioned provisions of Articles 102 and 104 of its Law on VAT, the Kingdom of Spain had failed to comply with the obligations imposed by the Sixth Directive. By letter of 20 September 2002 the Kingdom of Spain provided justification in part of the maintenance of its legislation. In consequence, the Commission has brought this action.

II — Analysis

A — On the compatibility of Article 102 of the Law on VAT with the Sixth Directive

9The effect of the provision at issue is to limit the right to deduct of all taxable persons in receipt of subsidies intended to fund their trade or business activities by application of a proportion the denominator of which includes those subsidies.

10That extension of the proportion rule clearly runs counter to the Sixth Directive. It follows from the unambiguous wording of Article 17 thereof that a deductible proportion such as that provided for in Article 19 of the directive may be applied to one given class of taxable persons alone. That is the class of 'mixed' taxable persons who carry out both transactions in respect of which VAT is deductible and transactions in respect of which it is not. The proportion cannot, therefore, be applied to 'fully' taxable persons carrying out only transactions in respect of which VAT is deductible.

11The Spanish Government maintains, nevertheless, that Article 19 of the Sixth Directive may be applied independently. It is therefore possible, it believes, for the proportion to be applied beyond the conditions laid down in Article 17 of the Sixth Directive.

12Such an interpretation must be rejected. It follows from the wording of Article 19(1) of the Sixth Directive that the deductible proportion is to apply in the conditions provided for by the first subparagraph of Article 17(5) of that directive. It may not, in consequence, be separated from those conditions. Its ambit is confined exactly to that of the first subparagraph of Article 17(5), which plainly refers to 'goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which value added tax is deductible, and for transactions in respect of which value added tax is not deductible'. 3

13Moreover, that interpretation gainsays the spirit of the harmonised system of VAT as defined in the Court's case-law. It is established that, '[i]n the absence of any provision empowering the Member States to limit the right of deduction granted to taxable persons, that right must be exercised immediately in respect of all the taxes charged on transactions relating to inputs ... [T]herefore derogations are permitted only in the cases expressly provided for in the Directive'. To apply the proportion to all taxable persons receiving subsidies amounts precisely to limiting the right to deduct beyond the situations provided for by the directive.

14The Kingdom of Spain suggests, however, that its interpretation is more in keeping with equity and that it is better able to further equal conditions of competition between economic operators. It argues that the system as the Commission would have it is contrary to equity in that only mixed taxable persons are subject to that limitation of the right to deduct whilst fully taxable persons receiving the same kinds of subsidy escape it. In addition, it gives rise to distortion of competition because it has the effect of giving further advantages to taxable persons receiving subsidies.

15Those arguments cannot be accepted. In the first place, it is to be noted, as the Commission has done, that under Article 19 of the Sixth Directive including subsidies not linked to price in the deductible proportion is merely an option afforded to the Member States. It was quite permissible for the Kingdom of Spain not to make use of that option and so avoid the negative consequences it claims to find in it. In the second place, it is established that that option was introduced into the Sixth Directive in order to prevent a subsidised body which was not authorised to carry out taxable transactions from being able, by performing a purely symbolic taxable activity, to obtain reimbursement of VAT. Having been introduced for such a purpose, that option cannot be extended and exploited as a general mechanism designed to level the conditions of competition between taxable operators. Furthermore, it might be thought that the Member States have available to them a good number of other means by which to restore the conditions of competition between taxable persons in receipt of subsidies and taxable persons not in receipt of subsidies.

16Finally, and in any case, it is not for the national authorities to undertake to alter the sense of clear provisions of law. The provisions of Article 17 of the Sixth Directive clearly specify the conditions giving rise to the right to deduct, the extent of that right and the conditions for its limitation. As the Court has earlier had occasion to declare, '[t] hey do not leave the Member States any discretion as regards their implementation'. In those circumstances, it is a matter of importance that limitations of the right to deduct should be applied in a similar manner in all the Member States.

B — On the compatibility of Article 104 of the Law on VAT with the Sixth Directive

17The provision at issue consists of limiting the right to deduct of certain taxable persons in receipt of subsidies simply by reducing the amount of the deduction of VAT due.

18There appears to be no doubt that such a provision is incompatible with the terms of the Sixth Directive.

19As the foregoing explanations make clear, under Articles 17 and 19 of the Sixth Directive limitation of the right to deduct by reason of the grant of subsidies not linked to price affects mixed taxable persons only and, so far as they are concerned, may be imposed only in accordance with the proportion rules fixed in Article 19. In this respect, the Law on VAT effects a twofold extension: on the one hand, it extends the limitation to taxable persons who are not subject to it and, on the other, for those who are subject to it, the Law provides a limitation which falls outside the rules fixed by the Sixth Directive.

20Now, I would recall that it is settled case-law that 'derogations [from the right to deduct] are permitted only in the cases expressly provided for in the Directive'. 7

21In this connection the Kingdom of Spain repeats its arguments based on economic equity and the need to avoid distortion of competition. However, the Court has had occasion to observe that, while the rules on the deductibility of VAT drawn up by the Community legislature are not perfect, none the less there may exist no possibility of derogating or departing from them. The same is true of the rules on limitation of the right to deduct. The Member States are prohibited from creating limitations beyond what the directive itself makes possible even if, in certain cases, such limitations might seem to be economically defensible. 9 To decide otherwise would compromise the harmonising objective pursued by the Sixth Directive.

Ill — The effects in time of a judgment establishing a breach of obligations

22As an ancillary point, the Kingdom of Spain requests the Court, if it should make a finding of failure to fulfil obligations, to limit the effects in time of its judgment.

23It has to be borne in mind that it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to limit the future effects of its judgments. Such a possibility, generally applied in references for a preliminary ruling, has not been excluded in relation to a judgment given on the basis of Article 226 EC.

24It is still necessary for it to be possible to establish that the State authorities were prompted to adopt legislation or conduct contrary to Community law because of objective and significant uncertainty regarding the implications of the Community provisions concerned. 1 Now, in the circumstances of this case, it is apparent that the relevant provisions of Community law leave

25The request that the effects of the no doubt as to their correct interpretation.

judgment to be given should be limited in The Kingdom of Spain could not have been time must therefore be rejected.

unaware that its legislation was incompatible with the provisions of the Sixth Directive.

IV — Conclusion

26In the light of the foregoing considerations, I suggest that the Court should declare as follows:

'By limiting the right to deduct value added tax in the conditions defined by Articles 102(1) and 104(2) of Law No 37/1992 of 28 December 1992 on value added tax as amended by Law No 66/1997 of 30 December 1997, the Kingdom of Spain has failed to fulfil its obligations under Articles 17 and 19 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.'

Notes

(1) Original language: Portuguese.

(2) OJ 1977 L 145, p. 1.

(3) It will be observed that the Conseil d'État (Council of State) (France) has held to this effect that the deductible proportion of VAT including subsidies received is applicable, pursuant to national law compatible with Community law, exclusively to taxable persons carrying out both transactions in respect of which VAT is deductible and transactions in respect of which it is not (decision of 26 November 1999 Syndicat mixte pour l'aménagement et l'exploitation de l'aéroport Rodez-Marcillac, given following an opinion to that effect of Commissaire du gouvernement (law officer presenting impartial report to an administrative court) Courtial).

(4) Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph

(16) ; Case C-62/93 BP Soupergaz [1995] ECR I-1883, paragraph

(18) ; Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 27, and Case 50/87 Commission v France [1988] ECR 4797, paragraph 17.

(5) BP Soupergaz, cited in footnote 4, paragraph 35.

(6) Commission v France, cited in footnote 4, paragraph 17.

(7) See the cases cited in footnote 4.

(10) See, to this effect. Case C-426/98 Commission v Greece [2002] ECR I-2793, and Case C-359/97 Commission v United

(8) Case C-338/98 Commission v Netherlands [2001] ECR I-8265, paragraphs 55 and 56.

(9) See, by analogy, Advocate General Sir Gordon Slynn s Opinion in Commission v France, cited in footnote 4, ECR 4811. Kingdom [2000] ECR I-6355.

(11) See Commission v United Kingdom, cited in footnote 10, paragraph 92.