Case T-422/05: Action brought on  21 November 2005  — Combescot v Commission
Date: 2006-01-28
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, indemnification, personnel administration, reassignment, regulations for civil servants, sick leave

C 22/22

EN

Official Journal of the European Union

28.1.2006

— in the alternative, declare unlawful under Article 241 EC
and inapplicable paragraph B(12) and paragraph C(2) of
datasheet No 19 annexed to the Commission decision of 23
April 1997 (97/322/EC);

— order the Commission to pay the costs.

gement of the general principles of legal certainty, protec-
tion of legitimate expectations and proportionality, in rela-
tion to the conduct of, and the positions taken during the
management failures of the Piedmont Fund, by both the
Piedmont Region and the Commission, regarding interpre-
tation of the legislation at issue.

Pleas in law and main arguments

The present application concerns assistance from a venture-
capital fund for an undertaking (Sys S.p.A.) to enable the latter
to make an investment in an area which is eligible under objec-
tive 2. By its application, the applicant Investire Partecipazioni
S.p.A. asks the Court of First Instance to annul the Commission
decision of 11 August 2005, file No 08405, concerning the
Commission's final position on financial corrections for the
purposes of Article 24 of Regulation (EEC) No 4253/88 (1) in
relation to Measure 1.5 of
the Piedmont SPD, objective 2
(1997 — 1999) — venture-capital fund for an investment in
the company Sys S.p.A. — and of the supplementary decision
of 23 August 2005, file No 08720. It follows from those two
decisions
the ineligible Community contribution was
EUR 542 277.6, corresponding to the Community participation
in the venture-capital fund contribution to the undertaking Sys
S.p.A.

that

In support of
following pleas in law:

its claims,

the applicant puts forward the

— In the first place, Investire Partecipazioni S.p.A. considers
that, by adopting the contested decisions, the Commission
committed a manifest error of assessment in fact and in
law. The Commission erroneously assessed the
facts
concerning the investment in the company Sys S.p.A. and
proceeded to misapply the relevant legislation, in particular
the provisions of datasheet number 19 concerning eligible
expenditure under the Structural Funds,
‘Financial engi-
neering: venture-capital funds’, annexed to the Commission
decision of 23 April 1997, and Article 24 of Regulation No
4253/88. The applicant emphasises in that connection that
the company Sys S.p.A. had in fact
taken appropriate
action unequivocally directed towards setting up an opera-
tional network in the objective 2 zone (2).

— Second,

the applicant considers

in adopting the
contested decision, the Commission infringed the principle
of sound financial management laid down in Article 274
EC and in Article 24 of Regulation No 4253/88.

that,

— In the alternative, that is to say in the event of the interpre-
tation of the relevant legislation made by the Commission
being held to be correct,
Investire Partecipazioni S.p.A.
considers
the decisions with which the present
that
proceedings are concerned in any event constitute an infrin-

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC) No
2052/88 as regards coordination of the activities of the different
Structural Funds between themselves and with the operations of the
European Investment Bank and the other existing financial instru-
ments (OJ L 374 of 31.12.1988, p. 1).

(2) Commission Decision (97/322/EC) of 23 April 1997 modifying the
decisions approving the Community support frameworks, the single
programming
initiative
and
programmes in respect of Italy (OJ L 146 of 5.6.1997, p. 11).

Community

documents

the

Action brought on 21 November 2005 — Combescot v
Commission

(Case T-422/05)

(2006/C 22/40)

Language of the case: Italian

Parties

Applicant(s): Philippe Combescot (Lecce, Italy) (represented by:
A. Maritati and V. Messa, lawyers)

Defendant(s): European Commission

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul the Commission's decision of 29 July 2004 to reas-
sign him to Brussels headquarters, such decision being in
substitution for a previous, similar decision of 13 June
2003;

— acknowledge that the applicant has suffered non-material
damage, to his health and to his image as a result of the
decision, with serious repercussions on his psychological
balance;

28.1.2006

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Official Journal of the European Union

C 22/23

— award the applicant damages of EUR 150 000.

Pleas in law and main arguments

The action is brought against the Commission's decision of 29
July 2004 to reassign the applicant to headquarters.

In support of his claims, the applicant argues that the decision:

— is unlawful, unjustified and arbitrary for failing to take
account of the fact that, at the time of the assignment, the
medical committee had recognised that the applicant was
unfit for service until 31 December 2004;

— does not allow the official
prescribed by his doctor;

to continue the therapy

— cannot be justified by the interests of the service, since an
official on sick leave cannot fulfill the work requirements of
the service.

The applicant adds that the contested decision has caused him
to lose the rights of an official in a non-member country, since
his illness arose at a time when he was performing the func-
tions of resident adviser in Guatemala.

Action brought on 16 November 2005 — Italian Republic
v Commission

(Case T-424/05)

(2006/C 22/41)

Language of the case: Italian

Parties

Applicant(s):
Avv. dello Stato)

Italian Republic (represented by: Paolo Gentili,

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action, brought by the Italian Republic,
is
concerned with Commission decision No C(2005) 3302 of 6
September 2005.

By that decision, the Commission declared to be incompatible
with the common market
the provisions of Article 12 of
Decree Law No 269/2003, converted into Law No 326/2003.

It provides, essentially, that the rate of tax replacing income tax
levied on the net profits of the various types of investment
funds and open-ended investment companies is to be reduced
from 12.5 % to 5 % where the funds or companies invest
during the calendar year at least two-thirds of the value of their
assets, for more than one-sixth of the fund's business days, in
small or medium-sized quoted capitalisation funds. Such funds
or companies are referred to as being 'specialised'.

the measure is

According to the Commission,
selective,
favouring, first, small or medium-sized capitalisation undertak-
ings as compared with others, channelling certain funds
towards them; second, they favour the specialised funds or
companies, as compared with general funds or companies, by
allowing them to assign greater income to individual units,
since the income is subject to a lower replacement tax. More-
over, it is a measure which has no connection with the general
tax system and in fact constitutes nothing more than opera-
tional aid. Finally, there is no reason for any derogation in
favour of the measure under Article 87(3)(c) EC.

According to the Italian Government, the decision is vitiated,
first, from the procedural point of view, because the decision to
initiate the procedure under Article 88(2) EC was adopted
without a prior exchange of views between the Commission
and the Italian administration, as provided for in Regulation No
659/99 concerning procedures for State aid (first plea).

Next, no adequate reasons are given concerning the basic
profile put forward by the Italian Government in the course of
the procedure: in the Italian legislation (which transposes the
directives on regulation of financial markets), unit trusts and
open-ended investment companies are classified merely as inde-
pendent funds divided into units. They do not therefore consti-
tute undertakings within the meaning of Community law. The
Commission took note of that situation, but observed that 'in
certain cases' such investment instruments constitute undertak-
ings; however, the Commission did not specify in what cases
and under what conditions open-ended investment companies
and funds acquire that status (second plea).

The third plea alleges infringement of Article 87 EC, on the
basis that open-ended investment funds and companies cannot,
by virtue of their nature, ever be regarded as undertakings
within the meaning of Community law, in so far as they are
merely forms of collective ownership of transferable securities.
However, even if they are regarded as such, the alleged aid is
not selective, because any interested party (companies mana-
ging 'contractual' unit trusts or promoting open-ended invest-
ment companies) could establish specialised instruments along-
side general instruments, and thus take advantage of the relief
available.