Case T-227/01: Action brought on 25 September 2001 by Territorio Histórico de Alava — Excma. Diputación de Alava, and the Comunidad autónoma del País Vasco — Gobierno Vasco against Commission of the European Communities
Date: 2001-11-24
Institutions: Court of First Instance
Subjects: Basque Country, European Commission, State aid, action for annulment (EU), corporation tax, tax relief

24.11.2001

EN

Official Journal of the European Communities

C 331/29

— If the Commission were to apply such reasoning
generally to all fiscal legislation, it would arrive at
the absurd conclusion that any change in the fiscal
burden constitutes State aid.

— If the Commission carried its reasoning to its final
logical conclusion, the result would be that any
variation within the regulatory framework in which
undertakings operate would constitute State aid.

(c) The applicant refutes the charge that the measures at
issue are selective and specific in nature, since, first, the
legislation is general in nature, not favouring a particular
undertaking or sector over another and, secondly, the
authority competent to apply it does not enjoy any
discretion but can instead merely ascertain on a case-by-
case basis whether the conditions laid down for triggering
the fiscal advantages are met.

Pleas in law and main arguments

The applicant has brought the present action against the
Commission in order to seek compensation for the damage
allegedly suffered as a result of the decisions adopted in the
context of the tender procedure opened in relation to the
supply of fruit juice and fruit jams intended for the people of
Armenia and Azerbaijan under Commission Regulation (EC)
No 228/96 of 7 February 1996 on the supply of fruit juice
jams intended for the people of Armenia and
and fruit
in particular decision
Azerbaijan (OJ 1996 L 30, p. 18),
C(96)1916 of 22 July 1996 and decision C(96)2208 of
6 September 1996.

Those decisions allowed for the substitution of the fruit
provided for in the tender, with no legal basis nor a supraven-
ing request for it.

Both decisions were challenged by the applicant (Joined Cases
T-191/96 and T-106/97) (1) before the Court of First Instance
which, by judgment of 14 October 1999, annulled the decision
of 6 September 1996, declaring the action brought in Case
T-106/97 inadmissible on the ground that it was out of time.

Action brought on 25 September 2001 by CAS Succhi di
Frutta SpA against the Commission of the European
Communities

The pleas in law and main arguments are similar to those put
forward in the abovementioned cases.

(Case T-226/01)

(2001/C 331/47)

(Language of the case: Italian)

(1) [1999] ECR II-3181.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2001 by CAS Succhi
di Frutta SpA, represented by Gian Michele Roberti and
Francesco Sciaudone, lawyers.

The applicant claims that the Court should:

— find that the Commission has incurred non-contractual
liability by adopting the decisions of 22 July and of
6 September 1996,

— declare that the applicant suffered damage as a result of
those decisions amounting to ITL 2 682 049 410,

— order the Commission to pay the costs.

Action brought on 25 September 2001 by Territorio
Histo´ rico de Alava — Excma. Diputacio´ n de Alava, and
the Comunidad auto´ noma del Paı´s Vasco — Gobierno
Vasco against Commission of the European Communities

(Case T-227/01)

(2001/C 331/48)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2001 by the Territo-
rio Histo´ rico de Alava — Excma. Diputacio´ n de Alava, and the
Comunidad auto´ noma del Paı´s Vasco — Gobierno Vasco,
Alava (Spain), represented by Ramo´ n Falco´ n, lawyer.

C 331/30

EN

Official Journal of the European Communities

24.11.2001

The applicants claim that the Court should:

— annul

in its entirety the decision of the Commission
which is contested in this action, in the alternative, annul
Article 3 of that decision,

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2001) 1759
final of 11 July 2001 declaring incompatible with the common
market the tax reductions arising from a number of regional
Laws (1) which provide for a tax credit of 45 % of the
investment in new fixed material assets in excess of ESP
2 500 million (EUR 15 025 303 ) made by undertakings in
the Territorio Histo´ rico de Alava.

In support of their claims, the applicants put forward the
following three arguments:

(a)

there is no ‘aid’ within the meaning of Article 87 of the
EC Treaty. The applicants maintain that, contrary to what
is stated in the contested decision:

— the existence of a minimum quantitative threshold

does not imply that there is any selectivity,

— the Commission has not given any substantiate its
charge that the fiscal measure threatens to distort
competition,

— moreover, the decision is disproportionate, since it
does not even exclude those sectors which are not
open to competition nor that portion of alleged aid
which could be regared as compatible;

— recovery of

the aid cannot be imposed as an
obligation when there are other options for restoring
the status quo.

(1) That tax credit, in the form now challenged by the contested
decision, was provided for in respect of 1995,
in the sixth
(Regional Law No 22/1994 of
addendum to Norma Foral
20 December 1994, and was extended until 1996 (Norma Foral
No 33/1995) and 1997 (Norma Foral No 31/1996);
it was
amended by Norma Foral No 24/1996 relativa al Impuesto sobre
Sociedades (Regional Law on Corporation Tax). Normas Forales
33/1997 and 36/1998 made similar provision in respect of
1998 and 1999.

Action brought on 25 September 2001 by Territorio
Histo´ rico de Vizcaya — Excma. Diputacio´ n de Vizcaya,
and the Comunidad auto´ noma del Paı´s Vasco — Gobierno
Vasco against Commission of the European Communities

(Case T-228/01)

(2001/C 331/49)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2001 by the Territo-
rio Histo´ rico de Vizcaya — Excma. Diputacio´ n de Vizcaya, and
the Comunidad auto´ noma del Paı´s Vasco — Gobierno Vasco,
Vizcaya (Spain), represented by Ramo´ n Falco´ n, lawyer.

The applicants claim that the Court should:

(b) misuse of powers: the Commission is using its powers in
the field of State aid in order to pursue an objective more
appropriate to tax harmonisation.

— annul

in its entirety the decision of the Commission
which is contested in this action, in the alternative, annul
Article 3 of that decision,

(c)

recovery of the aid, at least in the way required by the
contested decision, is excluded:

— order the Commission to pay the costs.

— the requirement to recover the aid is in breach of

legitimate expectations,

Pleas in law and main arguments

— recovery should have been excluded in respect of
those undertakings whos production is intended for
the local market or for sectors in which there is no
competition, as well as in respect of that portion of
the tax credit that does not exceed 25 % net grant
equivalent (NGE),

applicants

The
contest Commission Decision C(2001)
1765 final of 11 July 2001 declaring incompatible with the
common market the tax reductions arising from the fourth
addendum to Norma Foral (Regional Law) No 7/1996 of
26 December 1996, and the 10th addendum to Norma Foral