Case C-471/03 P: 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
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Spain, State aid, action for annulment (EU), aid system, maritime transport, transport company

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;

24.1.2004

EN

Official Journal of the European Union

C 21/15

— error of law, in that the Court of First Instance considered
that the Commission was not required to determine the
actual effect on competition and intra-Community trade
in its examination of the aid at issue in the light of
Article 87 EC;

insurance company and the insurance risk is borne by the
latter, are the activities undertaken by that taxable person in
execution of the agreement ‘related services performed by
insurance brokers and insurance agents’ within the meaning of
Article 13B(a) of the Sixth Directive (1)?

— distortion of the sense of the claims in the application
and error in law consisting of breach of the procedural
rules concerning the right to a fair hearing, in that the
Court of First Instance did not examine the claims relating
to the existence of exceptional circumstances and the
protection of legitimate expectations;

— distortion of the sense of the claims in the application
and error in law consisting of
the
procedural rules concerning the right to a fair hearing, in
that the Court of First Instance did not examine the
claims relating to infringement of Article 10 EC and
breach of the principle of good and proper administration
by the Commission;

infringement of

— error of law consisting of breach of the procedural rules
concerning the right to a fair hearing, in that the Court of
First Instance did not give a decision on the preparatory
inquiry proposed in the application.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 7 November
2003 in the case of Staatssecretaris van Financiën against
the single taxable entity Arthur Andersen & Co Account-
ants c.s.

(Case C-472/03)

(2004/C 21/27)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
der Nederlanden (Supreme Court of
the Netherlands) of
7 November 2003, received at the Court Registry on 12 Nov-
ember 2003, for a preliminary ruling in the case of Staatssecre-
taris van Financiën against the single taxable entity Arthur
Andersen & Co Accountants c.s. on the following question:

Where a taxable person has concluded an agreement with a
(life) assurance company, such as the agreement at issue
between ACMC and UL, under which that taxable person
undertakes, for a certain remuneration and with the aid of
qualified personnel who are expert in the insurance field, most
of the actual activities related to insurance — including, as a
rule, the taking of decisions that bind the insurance company
to enter into insurance contracts and maintaining contact with
the agents and, as the occasion arises, with the insured —
while the insurance contracts are concluded in the name of the

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes - Common system of value added tax: uniform
basis of assessment (OJ L 145 of 13.06.1977, p. 1-40).

Reference for a preliminary ruling by the Tribunale
Ordinario di Milano — Sezione X Penale — by order of
that Court of 23 October 2003 in the criminal proceedings
against Adelio Aggio, Paolo Berlusconi and Giovanni Butti

(Case C-473/03)

(2004/C 21/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Ordinario di
Milano - Sezione X Penale - (Milan District Court, Tenth
Criminal Chamber) of 23 October 2003, received at the Court
Registry on 13 November 2003, for a preliminary ruling in
the criminal proceedings against Adelio Aggio, Paolo Berlus-
coni and Giovanni Butti on the following question:

— Is Article 6 of Directive 68/151/EEC (1) to be understood
as requiring the Member States to establish appropriate
penalties not only for failing to disclose company balance
sheets and profit and loss accounts but also for falsifying
those documents, or other
company documents
addressed to the members or the public or any infor-
mation on a company’s assets and liabilities, and econ-
omic and financial situation which the company is
required to provide in relation to the company or the
group of which it forms a part?

— Do the requirements that the penalty be effective, pro-
portionate and dissuasive, with which terms the Court
defined the concept of ‘appropriate penalty’ in its judg-
ment of 21 September 1989 in Case 68/88 [Commission
v Hellenic Republic [1989] ECR I-2965], refer to the
nature or type of penalty considered in the abstract, or
rather also to its application in practice having regard to
the structural characteristics of the legal system within
which it takes effect? and finally