Case T-88/02: Action brought on 26 March 2002 by Territorio Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa against Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), aid to undertakings, business start-up, common market, tax exemption, tax system

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;

C 144/54

EN

Official Journal of the European Communities

15.6.2002

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

— order the Commission to pay the costs.

finds therein that reserves for waste disposal by and the
shutdown of nuclear power plants in the Federal Republic
of Germany do not constitute aid within the meaning of
Article 87(1) EC;

Pleas in law and main arguments

The applicants contest Commission Decision C(2001) 4448
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 11/
1993 of 26 June 1993 on urgent fiscal provisions to promote
investment and economic activity (Boletı´n Oficial de Gipuzkoa
No 128 of 8 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 28 March 2002 by Stadtwerke Schwä-
bisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwer-
ke Uelzen GmbH and Wuppertaler Stadtwerke AG against
the Commission of the European Communities

(Case T-92/02)

(2002/C 144/107)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 March 2002 by Stadtwerke
Schwäbisch Hall GmbH, Schwäbisch Hall
(Germany) and
3 other undertakings, represented by D.A. Fouquet, lawyer.

The applicants claim that the Court should:

— annul Commission Decision C(2001) 3967 final of
11 December 2001, to the extent that the Commission

— order the defendant to pay the costs of proceedings.

Pleas in law and main arguments

The applicants are all public utilities producing their own
electricity. They operate their own conventional electricity
production plants and, as energy producers and suppliers, are
in direct competition with the operators of nuclear power
plants in the Federal Republic of Germany.

According to the applicants, the commercial and tax law
situation in the Federal Republic of Germany places the
operators of nuclear power plants at an advantage since they
are able to include large amounts of the costs of the later
shutdown of the nuclear power plants and of the disposal of
radioactive waste in their provisions. The applicants claim
that, as a result, the profit actually realised by such operators
is reduced by the sum of the reserves, thus exempting them to
a considerable extent from the liability to pay income tax. The
operators are able to dispose freely of the sums included in the
reserves. The applicants, however, do not enjoy such an
advantage.

The applicants, who have filed an application with the
defendant for the opening of a procedure against the Federal
Republic of Germany pursuant to Article 87 EC (1), claim that
the unequal treatment resulting from the tax law and fiscal
practice in the Federal Republic of Germany constitutes non-
notified and unlawful aid within the meaning of Article 87 EC
which is incompatible with the common market. The tax
impact of the reserves represents an intervention distorting an
existing competitive relationship and affecting trade between
Member States. It is not merely a case of the application of
general rules of accounting and tax law but, rather, an
unjustified exception to the basic structure of the German tax
law system.

(1) The applicants have brought an action for failure to act with
respect to this complaint (Case T-291/01 Dessauer Versorgungs-
und Verkehrsgesellschaft mbH and Others v Commission, OJ 2002
C 44, p. 19).