Case T-189/03: Action brought on 2 June 2003 by ASM Brescia S.p.A. against Commission of the European Communities
Date: 2003-08-02
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), company with share capital, competition law, tax exemption

C 184/46

EN

Official Journal of the European Union

2.8.2003

— annul

the decision of

appointing authority of
the
17 February 2003, notified on 24 February 2003,
dismissing the applicant's complaint of 9 October 2002;

— restore all the applicant's pecuniary rights;

— order the defendant to pay default interest on sums owed
to the applicant as education allowance for the school
years 1999-2000 and 2000-2001 and 2001-2002, that
interest to run for the first two school years from 17 June
2002 until the sums are paid in full; for the school year
to run from 17 June 2002 to
2001-2002 interest
13 August 2002 for
the first and second terms and
from 8 March 2002 to 7 May 2002 for the third term.
The rate of default interest to apply must be calculated on
the basis of the rate set by the European Central Bank for
capital refinancing operations in force during the period
concerned, increased by two percentage points;

— order the defendant to pay one euro as compensation for
the non-material damage suffered by the applicant;

— order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant's daughter was born in 1996 and began to
attend the French Lycée in Brussels in September 1999.

first, on
In support of her application the applicant relies,
breach of Article 3 of Annex VII
to the Staff Regulations,
breach of Article 15 of Annex X to the Staff Regulations and
the Council Decision of 19 December 1998 laying down
general implementing provisions in respect of Annex X to the
Staff Regulations. She also complains that the Council took a
decision on grounds that are wrong in fact and law. The
applicant claims that despite the clear terms of the national
rules applicable to schooling and the replies given by the
French Government on those rules,
the Council considered
that her daughter's schooling was not primary education.

The applicant further alleges that the principle of non-discri-
mination was infringed in that children registered at a French
educational establishment are not treated in the same way as
children registered in a Luxembourg, British or Dutch educa-
tional establishment.

that

Lastly the applicant alleges
to state
to a hearing have been
reasons and the fundamental right
infringed. The applicant states that the Council did not take
account of the opinion of the French authorities and did not
explain why they did not do so.

the requirement

Action brought on 2 June 2003 by ASM Brescia S.p.A.
against Commission of the European Communities

(Case T-189/03)

(2003/C 184/101)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 June 2003 by ASM Brescia S.p.
A., represented by Fausto Capelli, Francesca Vitale and Massi-
miliano Valcada, lawyers.

The applicant claims that the Court should:

— in substance, annul Article 2 of Commission Decision
2003/193/EC of 5 June 2002, published in OJ 2003
L 77, by which the European Commission declared
incompatible with the common market
the measures
adopted by the Italian Republic under Article 2(70) of
Law No 549 of 28 December 1995 and Article 66(14) of
Decree Law No 331 of 30 August 1993, converted into
Law No 427 of 29 October 1993 granting exemption
from income tax to joint stock companies with majority
public shareholdings
set up in accordance with Law
No 142 of 8 June 1990;

— in substance,

in the alternative, annul Article 3 of
Commission Decision 2003/193/EC of 5 June 2002,
published in OJ 2003 L 11, by which the European
to recover
Commission ordered the
granted to, inter alios, the applicant;

Italian Republic

— order the European Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present action, the former azienda muni-
cipalizzata (municipal undertaking) of Brescia is contesting the
decision of the Commission of 5 June 2002 (1),
in which it
considered State aid the three-year exemption (1997 to 1999)
from income tax, provided for by Italian legislation for former
municipal undertakings which became
companies with a
majority public shareholding and accordingly ordered recovery
of the appropriate amounts.

In support of its claims, the applicant alleges the following:

— in the contested decision, the defendant appears to have
conducted its analysis while completely disregarding the
special nature of the public utilities sector, namely that it
ensures public provision of certain minimum services
deemed to be of fundamental importance.

2.8.2003

EN

Official Journal of the European Union

C 184/47

— The contested decision does not take account of the fact
that, in the years concerned, in the public utilities sector
there were a number of de jure and de facto monopolies
such as to exclude a market open to competition. The
Commission merely assumed, without putting forward
the presence of an open competitive
any evidence,
market.
In that regard, the Court should find that the
Commission has failed to provide adequate reasons inas-
much as it has found competition to have been infringed
on a single ground: the alleged damage suffered by those
undertakings which are not beneficiaries of the measures
provided for by the legislation in question in the event
that they should compete with the beneficiary undertak-
ings for the same contracts.

— Since the inquiry was opened only in so far as concerned
exclusively the local public utilities market where it was
assumed that there was open competition, the final deci-
sion could not assess the impact of
the measures on
other markets which were not concerned by the decision
to initiate the procedure. Finally, the measures in question
cannot be deemed incompatible with the common market
in theory, have
in so far as those undertakings could,
operated in a market other
local public
utilities, which is the only one under formal investigation.

than that of

— The provision which limits the ‘tax moratorium’ to only
three years does not introduce any new State aid, rather it
merely amends a tax regime which has been applicable to
a defined category of taxpayer since 1925.

— Should the Court find that this is a case of State aid, it
should, pursuant
the Treaty, be
to Article 87(3)(c) of
declared compatible with the common market inasmuch
as the measures are inherent in the nature and/or general
structure of the system in question. Indeed, a change in
the general system of local public utilities could not have
been successfully carried out if
the undertakings which
had to become companies with a majority public share-
holding had not been afforded the chance to become
gradually acquainted with the mechanisms which govern
private law.

In its application, the applicant also alleges infringement of
Article 86(2) of the Treaty inasmuch as it was held in the
decision that that provision did not apply to the measures in
question.

(1) Commission Decision 2003/193/EC of 5 June 2002 on State aid
granted by Italy in the form of tax exemptions and subsidised loans
to public utilities with a majority public capital holding (OJ 2003
L 77, p. 21).

Action brought on 21 May 2003 by Sanni Olesen against
the Commission of the European Communities

(Case T-190/03)

(2003/C 184/102)

(Language of the Case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 21 May 2003 by Sanni Olesen,
resident in Brussels, represented by Sébastien Orlandi, Albert
Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Commission's decision of 19 April 2002 not to
grant her an expatriation allowance from her entry into
service on 3 March 2002;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant
in this case, a Grade A official with the
Commission, opposes the Commission's decision not to grant
her an expatriation allowance because she worked in Belgium
from 15 June 1995. Since that date she has lived in Belgium
and has had her main occupation there, as a freelance lecturer
for Education and
for the Commission's Directorate-General
Culture and as representative in Brussels of
the town of
Odense (ODENSE KOMMUNE — Denmark).

In support of her claims,
Article 4(1)(a) of Annex VII
submits in this connection that:

the applicant pleads breach of
to the Staff Regulations. She

— the status of freelance lecturer, characterised by a direct
legal link between her and the institution, corresponds to
a situation arising from work done for an international
organisation;

— under

their charters of autonomy, Danish towns may
open representations abroad and consequently the appli-
cant's occupation as representative of the town of Odense
‘work done for another State’,
must be regarded as
namely the Kingdom of Denmark.