Case C-469/03: Reference for a preliminary ruling by the Tribunale di Bologna — Sezione 1a penale — by order of that Court of 22 September 2003 in the criminal proceedings against Mario Filimeno Miraglia
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Schengen Agreement, criminal proceedings, interpretation of the law, judicial cooperation in criminal matters in the EU

C 21/14

EN

Official Journal of the European Union

24.1.2004

Reference for a preliminary ruling by the Tribunale di
Bologna — Sezione 1a penale — by order of that Court of
22 September 2003 in the criminal proceedings against
Mario Filimeno Miraglia

(Case C-469/03)

(2004/C 21/25)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Bologna
— Sezione 1a penale — (Bologna District Court, First Criminal
Collegiate Chamber) of 22 September 2003, received at the
Court Registry on 10 November 2003, for a preliminary ruling
in the criminal proceedings against Mario Filimeno Miraglia
on the following question:

Does Article 54 of the Convention implementing the Schengen
Agreement of 14 June 1985 apply when the decision of the
court in the first State appears to discontinue prosecution
without adjudicating on the merits of the case and on the sole
premise that proceedings are taking place in another State?

— principally, if the state of the proceedings so permits,
uphold the claims made at first instance by the appellant
and, in consequence, annul the Commission’s decision of
29 November 2000 on the aid scheme implemented by
Spain in favour of the shipping company Ferries Golfo de
Vizcaya or, secondarily, annul Article 2 of the Decision
in so far as it orders repayment of ESP 985 500 000,
together with interest;

— if the preceding claim is not allowed, refer the matter

back to the Court of First Instance;

— in either case, order the Commission to pay the costs of

both sets of proceedings.

Pleas in law and main arguments

— Error of law, in that the Court of First Instance interpreted
the ‘advantage’ element of the concept of State aid in the
light of the principle of a private investor operating in
normal market economy conditions, so introducing as a
criterion of analysis the criterion of assessing the need for
public intervention;

Appeal brought on 12 November 2003 (by fax of
10 November 2003) by the Diputación Foral de Bizkaia
against the judgment delivered on 5 August 2003 by the
First Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Joined
Cases T-116/01 and T-118/01 between P. & O. European
Ferries (Vizcaya) S.A.
(T-116/01) and the Diputación
Foral de Vizcaya (T-118/01) and the Commission of the
European Communities

— misinterpretation of Article 87 EC, inasmuch as the Court
of First Instance inferred the existence of State aid because
it considered that there was no need for the purchase of
vouchers;

— error of law, in that the Court of First Instance did not
penalise the lack of economic analysis in the Com-
mission’s decision, where it declared that all the sums
paid constituted State aid;

(Case C-471/03 P)

(2004/C 21/26)

An appeal against the judgment delivered on 5 August 2003
by the First Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Joined Cases
T-116/01 and T-118/01 between P. & O. European Ferries
(Vizcaya) S.A. (T-116/01) and the Diputación Foral de Vizcaya
(T-118/01) and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 12 November 2003 by the Diputación Foral
de Bizkaia, represented by Marta Morales Isasì and Ignacio
Sáenz-Cortabarria.

The appellant claims that the Court should:

— set aside the contested judgment;

— clear distortion by the Court of First Instance of the
statement of reasons given for the decision, on the basis
solely of lack of transparency in the selection of the
shipping company, so as to exclude application of
Article 87(2)(a) EC, which gave rise to infringement of
the right to a fair hearing because no real answer was
given to the arguments put forward in the application;

— obvious inaccuracy as regards matters taken by the
Court of First Instance to be proven facts and incorrect
classification of facts, in that the Court of First Instance
considered that the aid contained in the 1995 agreement
was ‘instituted and implemented in 1992’ and drew the
legal inference therefrom that the aid was unlawful, which
amounts to clear distortion of the facts, of the Decision
itself and of the evidence, and breach of procedural
rules, in that the Court of First Instance substituted the
Commission’s reasoning for its own in classifying the aid
at issue as illegal;