Case T-292/02: Action brought on 27 September 2002 by the Confederazione nazionale dei servizi against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: State aid, action for annulment (EU), aid to undertakings, infringement of EU law, interest rate subsidy, loan, public service, tax exemption

C 274/38

EN

Official Journal of the European Communities

9.11.2002

Action brought on 27 September 2002 by the Confedera-
zione nazionale dei servizi against the Commission of the
European Communities

(Case T-292/02)

(2002/C 274/65)

three-year exemption from tax on profits, granted by Italy to
local public service undertakings with publicly-owned majority
shareholdings within the meaning of Article 3(70) of Legge
(Law) No 549/1995, and loans at reduced interest rates within
the meaning of Article 9a of Decreto Legge (Decree-Law)
No 488/1986, in so far as it requires Italy to recover the said
aids from the recipients, including the applicant.

(Language of the case: Italian)

In support of its claims the applicant alleges:

An action against the European Commission was brought
before the Court of First Instance of the European Communities
on 27 September 2002 by the Confederazione nazionale dei
servizi, represented by C. Tessarolo and A. Vianello, lawyers.

The applicant claims that the Court should:

— annul Article 2 of Commission Decision No C.27/99
(ex NN 69/99) by which the Commission declared
incompatible with the common market the measures
adopted by Italy in the form of a three-year exemption
from tax on profits and in the form of loans to joint-stock
companies with publicly-owned majority shareholdings
within the meaning of Legge (Law) No 142 of 8 June
1990;

— alternatively, annul Article 3 of Decision No C.27/99 by
which the Commission required Italy to recover from the
recipient undertakings the aid which had been declared
unlawful;

— in any case, in the further alternative, annul Article 3 in
so far as it fixes interest on the basis of the reference rate
used to calculate the equivalent subsidy in connection
with aid for regional purposes;

— order the Commission to pay the costs.

Pleas in law and main arguments

— infringement of Article 87(1) EC and Regulation No 659/
1999/EC by virtue of the absence of any effect on trade
between the Member States. It argues in that regard that,
for the purposes of applying Article 87(1) to an aid
measure, the Commission must identify and establish the
facts that are capable of showing, firstly, the existence of
a system of competition in the relevant market sector
and, secondly, the possibility of the aid having a negative
effect on trade within the Community. As it is, the
markets in which the companies formed under Legge
(Law) No 142/90 were operating during the period under
consideration had not been liberalised; on the contrary,
they were organised as local monopolies which were
totally closed to free competition. Furthermore,
the
particular nature of companies formed under Legge
No 142/90 and their substantive corporate continuity as
reincarnations of the municipalised and special undertak-
ings had led the Italian legislature and national law to
confine the activities of the newly incorporated joint-
stock companies within the local sphere of the relevant
undertaking;

— infringement of Article 88(1) of the EC Treaty and of
Article 1(b)(i) and (v) of Regulation No 659/1999,
inasmuch as the defendant has classified the measures as
‘new aid’, thereby infringing the procedural rules with
which the Commission must comply in the case of
‘existing aid’;

— infringement of

the derogation provided for

in
Article 86(2) EC, inasmuch as undertakings formed under
Legge No 142/90 perform activities of general economic
interest.

This action seeks annulment of the Commission’s decision of
5 June 2002 (State Aid No 27/99), in so far as it declares
unlawful and incompatible with the common market the

The applicant also pleads infringement of the obligation to
state reasons.