Case T-86/02: Action brought on 26 March 2002 by Territorio Histórico de Alava — Diputación Foral de Alava against Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), aid to undertakings, business start-up, common market, tax exemption, tax system

C 144/52

EN

Official Journal of the European Communities

15.6.2002

Decision of
sition division:

the oppo-

Refusal of registration in respect
of certain products

Decision of the Board of
Appeal:

Partial annulment of the decision
of the Opposition Division and
refusal of registration in respect
of an additional product (‘cheeses’)

Pleas in law:

— Infringement

Arti-
cle 8(1)(b) of Regulation
No 40/94

of

1993 of 5 July 1993 on urgent fiscal provisions to promote
investment and economic activity (Boletı´n Oficial del Territorio
Histo´ rico de Alava No 79 of 16 July 1993), which provides
for exemption from company tax for undertakings created
between the entry into force of that Law and 31 December
1994, provided that they invest more than PTA 80 million
(EUR 480 810), create more than 10 new jobs and have
disbursed capital amounting to more than PTA 20 million
(EUR 120 202).

— Incorrect

interpretation of
the concept of risk of con-
fusion

The applicants put forward essentially 5 pleas in law:

Action brought on 26 March 2002 by Territorio Histo´ rico
de Alava — Diputacio´ n Foral de Alava against Com-
mission of the European Communities

(Case T-86/02)

(2002/C 144/104)

(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 26 March 2002 by the Territorio
Histo´ rico de Alava — Diputacio´ n Foral de Alava, Alava (Spain),
represented by Ignacio Saenz-Cortabarria and Marta Morales
Isasi.

The applicants claim that the Court should:

— annul the Commission Decision of 20 December 2001
on the system of aid implemented by Spain in 1993 in
favour of a number of newly-created undertakings in
Alava;

— 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) 4475
final of 20 December 2001 declaring State aid incompatible
with the common market the exemption from company tax
arising from Article 14 of Norma Foral (Regional Law) No 18/

a.

b.

c.

d.

infringement of the first paragraph of Article 87 EC
inasmuch as the Commission committed a manifest error
of assessment by considering that the fiscal measure at
issue is prima facie State aid within the meaning of the
aforementioned article. In the applicant’s view, the pre-
sent case does not involve selective advantage, which is
typical of State aid within the meaning of that provision,
since it is a measure which is established on the basis of
objective criteria and affects all economic operators (both
natural and legal persons) in the same way.

in the alternative, with regard to the first plea in law,
misinterpretation by the Commission of the concept of
‘State aid’. The applicants state that, should the Court take
the view that the measure at issue is indeed State aid, it
would in any event be as an existing aid scheme either
within the meaning of Article 1(b)(v) of Regulation (EC)
No 659/1999 since, when it was implemented,
the
measure was not ‘aid’, or within the meaning of 1(b)(ii) as
aid which, at the time, was impliedly authorised by the
Commission.

in the further alternative to the first plea in law, failure to
observe the procedures laid down by law. According to
Article 88(1) EC and Regulation (EC) No 659/1999, the
proper procedure for the review of systems of existing
aid is as provided for in Articles 17 to 19 of that
regulation, not that followed by the Commission in the
present case, which is the procedure to be applied to
unlawful aid.

in the alternative with regard to the first three pleas in
law, abuse by the Commission of its power to authorise
aid under Article 87(3)(c) EC by considering the disputed
fiscal measure to be operating aid and to declare, as a
consequence, that it is aid incompatible with the common
market. The Commission improperly equates what is
nothing more than a means of assessing the element of
aid with the genuine concept of aid to investment or for
job creation. The fact that the amount of the aid as a

15.6.2002

EN

Official Journal of the European Communities

C 144/53

percentage of the investment or the cost of salaries was
not set beforehand in no way precludes its being done
subsequently with the aim of checking that it does not
exceed the level of aid for a region authorised as part of
overall regional aid.

— in the alternative, annul Article 3 of that decision;

— order the Commission to pay the costs.

e.

in the alternative to all the above pleas in law, the order
requiring recovery of the aid (first sentence of Article 3
of the contested decision) infringes the last sentence of
Article 14(1) of Regulation (EC) No 659/1999 given the
exceptional circumstances of the present case (duration
of the preliminary examination, which lasted more than
79 months). The fact that the Commission examined the
fiscal scheme at issue in 1994 and did not find against it
gave rise to a well-founded expectation that
it was
regarded as compliant with Community law, so that
Article 3 of the contested decision is contrary to the
principles of legal certainty and legitimate expectations.

Pleas in law and main arguments

The applicants contest Commission Decision C(2001) 4478
final of 20 December 2001 declaring State aid incompatible
with the common market the exemption from company tax
arising from Article 14 of Norma Foral (Regional Law) No 5/
1993 of 24 June 1993 on urgent fiscal provisions to promote
investment and economic activity (Boletı´n Oficial de Bizkaia
No 154 of 7 July 1993), which provides for exemption from
company tax for undertakings created between the entry into
force of that Law and 31 December 1994, provided that they
invest more than PTA 80 million (EUR 480 810), create more
than 10 new jobs and have disbursed capital amounting to
more than PTA 20 million (EUR 120 202).

The pleas in law and main arguments put forward by the
applicants are identical to those put forward in Case T-86/02.

Action brought on 26 March 2002 by Territorio Histo´ rico
de Bizkaia — Diputacio´ n Foral de Bizkaia aygainst Com-
mission of the European Communities

(Case T-87/02)

(2002/C 144/105)

(Language of the case: Spanish)

Action brought on 26 March 2002 by Territorio Histo´ rico
de Gipuzkoa — Diputacio´ n Foral de Gipuzkoa against
Commission of the European Communities

(Case T-88/02)

(2002/C 144/106)

(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 26 March 2002 by the Territorio
Histo´ rico de Bizkaia — Diputacio´ n Foral de Bizkaia, Bizkaia
(Spain), represented by Ignacio Saenz-Cortabarria and Marta
Morales Isasi.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 26 March 2002 by the Territorio
Histo´ rico de Gipuzkoa — Diputacio´ n Foral de Gipuzkoa,
Gipuzkoa (Spain), represented by Ignacio Saenz-Cortabarria
and Marta Morales Isasi.

The applicants claim that the Court should:

The applicants claim that the Court should:

— annul the Commission Decision of 20 December 2001
on the system of aid implemented by Spain in 1993 in
favour of a number of newly-created undertakings in
Bizkaia;

— annul the Commission Decision of 20 December 2001
on the system of aid implemented by Spain in 1993 in
favour of a number of newly-created undertakings in
Gipuzkoa;