Case T-211/05: Action brought on 26 May 2005 by the Italian Republic against the Commission of the European Communities
Date: 2005-07-23
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), corporation tax, organisation, stock-exchange listing, tax relief

23.7.2005

EN

Official Journal of the European Union

C 182/43

Pleas in law and main arguments

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

in this

Big Ben Establishment Ltd. The
applicant
the
purchaser of
the application for
registration filed by Big Ben Estab-
lishment

case

is

Community trade mark
concerned:

for goods

Figurative mark ‘Limoncello di
in classes 30
Capri’
and
(pastries
drinks
other
belonging to class 32) and 33
(lemon based liqueurs)

etc.), 32 (syrups
lemon

based

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Trade mark or
cited in opposition:

sign

Limiñana y Botella S.L.

word

Spanish
mark
LIMONCHELO for goods in class
33

Decision of the Opposi-
tion Division:

Refuses registration

The action concerns Commission decision C (2005) 591 final
which declared incompatible with the common market, as
State aid contrary to Article 87 EC, two Italian tax measures
granted to companies obtaining listing on regulated markets in
the period stated in the measures themselves. Those measures
reduce the rate of income tax for three years and exclude from
taxable income the costs of the listing borne by the company.

According to the Commission, the measures in question are
selective since they favour only those companies obtaining
listing in the period stated in the Italian rules, excluding those
already listed and those which might be listed in different
periods; the measures cannot therefore be regarded as compa-
tible since they do not come within any of the cases laid down
in Article 87(2) and (3) EC.

The Italian Government criticises the decision, first, from the
procedural point of view, since the Commission initiated the
procedure provided for in Article 88(2) EC without discussing
the measures with the Member State concerned beforehand.

Decision of
of Appeal:

Pleas in law:

the Board

Rejects the appeal

Violation of Article 8 (1)
Council Regulation No. 40/94 (1).

(b) of

Secondly, the applicant notes that the Commission did not
submit any comments regarding a previous measure adopted
by Italy in 1997, which was essentially the same.

(1) OJ L 011, 14/01/1994, p. 1

Thirdly, the applicant denies that the measures are selective. In
fact they are directed at a potentially indefinite number of reci-
pients. On the other hand, the measures are consistent with the
tax system as a whole, since they take account of the fact that,
in order to be listed, a newly quoted company must bear very
heavy charges which place it in a situation of reduced earning
capacity compared both with unquoted companies and those
which have been quoted for some time and have been able to
write off those costs. The limited time period is the result of
the
budgetary constraints and the experimental nature of
measure. That
selective a
measure which is inherently not so.

factor cannot,

in itself,

render

Fourthly, the applicant denies that the Commission has demon-
strated that the measure is likely to distort competition and
affect trade between Member States.

it

Fifthly and finally, the applicant argues that if the measure is
defined as aid,
is compatible with the common market
within the meaning of Article 87(3)(c). It is aid for investments
rather than for operations, and is consistent with the specific
economic objective of promoting the listing of companies on
the stock exchange which is beneficial for efficiency, transpar-
ency and the competitiveness of the system.

Action brought on 26 May 2005 by the Italian Republic
against the Commission of the European Communities

(Case T-211/05)

(2005/C 182/80)

(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 26 May 2005 by the Italian
Republic, represented by Paolo Gentili, Avvocato dello Stato.

The applicant claims that the Court should:

1. annul Commission decision C (2005) 591 final;

2. order the Commission to pay the costs.