# C_2010328EN.01004901.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/49 |
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4.12.2010

EN

Official Journal of the European Union

C 328/49

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Action brought on 4 October 2010 — Portugal v Commission

(Case T-475/10)

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2010/C 328/77

Language of the case: Portuguese

Parties

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, assisted by C. Botelho Moniz and P. Gouveia e Melo, lawyers)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | repeal Commission Decision C(2010) 4891 final of 20 July 2010, concerning the parafiscal charge to promote wine applied by Portugal — State aid No C-43/2004 (ex NN 38/2003);
  in the alternative, failing that, |
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repeal Commission Decision C(2010) 4891 final of 20 July 2010, concerning the parafiscal charge to promote wine applied by Portugal — State aid No C-43/2004 (ex NN 38/2003);

in the alternative, failing that,

| — | annul the seventh and ninth conditions of Article 3(2) of the Decision;
  and, in either case, |
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annul the seventh and ninth conditions of Article 3(2) of the Decision;

and, in either case,

| — | order the European Commission to pay the costs of the proceedings. |
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order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

| (a) | Error of law, by infringing Article 107(1) of the EC Treaty by classifying as state resources that part of the proceeds of the promotional tax applied to funding support for the promotion and advertising of wine, under the terms of Decree-Law No 119/97 of 15 May; |
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(a)

Error of law, by infringing Article 107(1) of the EC Treaty by classifying as state resources that part of the proceeds of the promotional tax applied to funding support for the promotion and advertising of wine, under the terms of Decree-Law No 119/97 of 15 May;

| (b) | Error of law, by infringing Articles 107(1) and 296 of the EC Treaty and of Commission Regulation (EC) No 1860/2004, (1) in so far as the Commission classified the support for the promotion and advertising of wine as public aid without analysing whether it is liable to restrict competition or whether it could constitute de minimis aid; |
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(b)

Error of law, by infringing Articles 107(1) and 296 of the EC Treaty and of Commission Regulation (EC) No 1860/2004, (1) in so far as the Commission classified the support for the promotion and advertising of wine as public aid without analysing whether it is liable to restrict competition or whether it could constitute de minimis aid;

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de minimis

| (c) | Error in assessing the facts, by finding that the promotional tax, as a mechanism to fund promotional and advertising initiatives in other Member States and third countries, discriminates against imported products and infringes Article 110 of the EC Treaty, and infringement of the principle of good administration, by not carrying out additional investigation measures after the request for information of 24 April 2006 in order to respond to the doubts that the Commission still had in this regard; |
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(c)

Error in assessing the facts, by finding that the promotional tax, as a mechanism to fund promotional and advertising initiatives in other Member States and third countries, discriminates against imported products and infringes Article 110 of the EC Treaty, and infringement of the principle of good administration, by not carrying out additional investigation measures after the request for information of 24 April 2006 in order to respond to the doubts that the Commission still had in this regard;

| (d) | Error of law, regarding the application of Article 108 of the EC Treaty and Article 7(4) of Council Regulation (EC) No 659/1999, (2) and having regard to the principles of proportionality and of equal treatment, in so far as — even if one accepts the legality of the analysis carried out by the Commission in the Decision (which is not the case) — the seventh condition laid down in Article 3(2) of the Decision contradicts the analysis and the conclusions that the Commission presented in the grounds of the Decision; |
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(d)

Error of law, regarding the application of Article 108 of the EC Treaty and Article 7(4) of Council Regulation (EC) No 659/1999, (2) and having regard to the principles of proportionality and of equal treatment, in so far as — even if one accepts the legality of the analysis carried out by the Commission in the Decision (which is not the case) — the seventh condition laid down in Article 3(2) of the Decision contradicts the analysis and the conclusions that the Commission presented in the grounds of the Decision;

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| e) | Error of law, in so far as the ninth condition laid down in Article 3(2) of the Decision infringes Articles 108 and 296 of the EC Treaty, Articles 6(1) and 7(4) of Council Regulation (EC) No 659/1999 (2), and also the principles of proportionality, of equal treatment and of the rights of defence. |
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e)

Error of law, in so far as the ninth condition laid down in Article 3(2) of the Decision infringes Articles 108 and 296 of the EC Treaty, Articles 6(1) and 7(4) of Council Regulation (EC) No 659/1999 (2), and also the principles of proportionality, of equal treatment and of the rights of defence.

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(1)  Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sectors.

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de minimis

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.

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