Case C-185/02: Action brought on 17 May 2002 by Commission of the European Communities against Portuguese Republic
Date: 2002-07-27
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, chemical product, data transmission, decontamination, waste disposal, waste management

C 180/10

EN

Official Journal of the European Communities

27.7.2002

4.

in the alternative, refer the case back to the Court of First
Instance for judgment, if the Court of Justice should deem
that appropriate;

5.

order the Commission to pay the costs in both sets of
proceedings.

— Error in law, when applying Articles 87 and 88 EC and
Article 1 of Council Regulation (EC) No 659/1999 of
22 March 1999 laying down detailed rules for the
application of Article 93 of the EC Treaty (1), for consider-
ing that the tax credit is not existing aid, and lack of
statement of reasons: in the event that the Court should
take the view that the Commission’s criteria regarding tax
measures have changed, the tax credit constitutes existing
aid.

Pleas in law and main arguments

— Error in law in applying Article 87 EC to the 45 % tax
credit on investment and lack of statement of reasons in
the judgment with regard to that aspect:

— Discretion of the public authorities: at issue in the
proceedings before the Court of First Instance was
Norma Foral No 22/1994 specifically as applied to
the undertaking Demesa rather than in general,
which is the subject of another decision of the
Commission on State aid and of another action for
annulment. As may be inferred from the decision
granting application of the tax credit to Demesa,
which constituted the subject-matter of proceedings
before the Court of First Instance, the Diputacio´ n
Foral de Alava merely applies the provision as
it stands, without imposing any conditions. The
existence of prior authorisation of the public auth-
orities is entirely logical and sought by the undertak-
ings themselves. In fact, such prior oversight gives
ample legal certainty to the undertakings covered by
that provision, since it implies that Hacienda Foral
(regional
approved the
amounts invested, including assets, etc, instead of
the uncertainty which would be entailed by the
automatic application of the tax incentive and the
possible subsequent inspection.

finance ministry) has

— requirement

to invest ESP 2 500 million:

this
requirement does not make the measure selective,
since it is applied objectively to all undertakings in
all sectors which invest that amount and is not
restricted to undertakings with considerable finan-
cial resources.

that

it was evident

— Error in law for not considering applicable the principle
of legitimate expectations: when Demesa applied for and
was granted the tax credit,
the
Commission’s criteria for deciding whether tax measures
constituted State aid were very different from the present
criteria. Since that was the situation at the material time,
it seems excessive for the Court of First Instance to require
Demesa to take the step of verifying whether the tax
measure under the legislation applicable to it fulfilled
the requirements laid down in Article 87 and should,
therefore, be notified to the Commission. Not even the
Commission was certain in that respect, given its failure
to act with regard to the measure concerned.

(1) OJ 1999 L 83.

Action brought on 17 May 2002 by Commission of the
European Communities against Portuguese Republic

(Case C-185/02)

(2002/C 180/18)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 17 May
2002 by the Commission of the European Communities,
represented by Anto´ nio Caeiros, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

Even if it were selective, the tax credit would still be
justified by the nature or scheme of the system in that it
is not an exceptional measure but a provision of general
scope which applies to any undertaking making an initial
investment in Alava which fulfils the requisite conditions
laid down in the legislation in issue; such conditions
cannot in any event be described as extraordinary or
discriminatory.

— Declare that, by failing to notify the plans and projects
provided for in Article 11 of Council Directive 96/
59/EC (1) of 16 September 1996 on the disposal of
polychlorinated biphenyls and polychlorinated terphen-
yls (PCB/PCT) and the summary of inventories provided
for in Article 4(1) of the directive, the Portuguese Republic
has failed to fulfil its obligations under those provisions;
and

27.7.2002

EN

Official Journal of the European Communities

C 180/11

— Order the Portuguese Republic to pay the costs.

The appellant claims that the Court should:

Pleas in law and main arguments

The Commission is of the view that the Portuguese Republic
has still not notified to it the plans and projects required by
Article 11 of Directive 96/59/EC. The ‘National plan for the
decontamination and/or disposal of equipment listed in the
inventories and of the PCB contained in such equipment’
forwarded by the Portuguese Government, not having been
adopted by the Government or published in the Dia´rio da
Repu´ blica (official gazette), does not appear to be binding.
Moreover,
it fails to deal with a number of questions or
restricts itself, with regard to others, to statements of intention.
Finally, it does not contain any reference to timings (timetable)
for the measures which the Portuguese authorities intend to
implement.

The Portuguese authorities have still not drawn up an inventory
of the equipment containing in excess of 5 dm3 of PCB in
accordance with Article 4(1) of Directive 96/59/EC. Thus, the
‘summary’ which the Portuguese Government claims to have
transmitted to the Commission cannot be regarded as a
summary within the meaning of Article 4.

(1) OJ 1996 L 243, p. 31.

1.

declare the present appeal admissible and consequently:

2.

3.

set aside the judgment of the Court of First Instance of
6 March 2002;

itself give final judgment in the matter on the basis of the
appellant’s pleadings at first instance and, in particular,
annul the decision of the Commission of 24 February
1999 inasmuch as the tax credit of 45 % of investment
provided for by the Norma Foral de Alava (Alava regional
Law) No 22/1994 does not constitute aid within the
meaning of Article 87 EC or, if it should be deemed so to
be, is existing aid, pursuant to Article 88 EC and Article 1
of the State aid Rules;

4.

in the alternative, to refer the case back to the Court of
First Instance for judgment, if the Court of Justice should
deem that appropriate;

5.

order the Commission to pay the costs in both sets of
proceedings.

Appeal brought on 21 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Joined Cases T-127/99,
T-129/99 and T-148/99 (not yet published) between
Territorio Histo´ rico de A´ lava — Diputacio´ n Foral de
A´ lava and Others and Commission of the European
Communities

(Case C-187/02 P)

(2002/C 180/19)

An appeal against the judgment delivered on 6 March 2002
by the Third Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Joined Cases
T-127/99, T-129/99 and T-148/99 between Territorio His-
to´ rico de A´ lava — Diputacio´ n Foral de A´ lava and Others and
Commission of
the European Communities was brought
before the Court of Justice of the European Communities on
21 May 2002 by Territorio Histo´ rico de Alava — Diputacio´ n
Foral de Alava, represented by Antonio Creus Carreras and
Begon˜ a Uriarte Valiente, Abogados, of Calle Vela´zquez No 63,
Madrid.

Pleas in law and main arguments

are similar to the first two pleas in law in Case C-183/02 P (1),
together with a third plea in law:

— infringement of Community law inasmuch as there was
no finding of misuse of powers by the Commission and
no reasons were provided in that respect: the public
at large is extremely well-aware of the problems at
Community level
for harmonising tax, which would
allow undertakings and private individuals to operate in
fairer conditions. The unwillingness of a number of
Member States makes it impossible to achieve the necess-
ary level of agreement within the Council. By means of
the indirect route of State aid proceedings, in which the
Commission enjoys wide powers, that institution has
succeeded in doing away with ‘controversial’
tax
measures.

(1) See p. 9 of this Official Journal.