Case T-445/05: Action brought on  19 December 2005  — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission of the European Communities
Date: 2006-02-25
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), control of State aid, corporation tax, investment company, tax relief

25.2.2006

EN

Official Journal of the European Union

C 48/41

Pleas in law and main arguments

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put
forward in Case T-109/05 Navigazione Libera del Golfo v
Commission. (1)

It should, however, be stated that the contested decision in
Case T-109/05 is based on Article 4(2) of Regulation No
1049/2001, whereas the decision at issue in this case is based
on Article 4(4) and (5) of that regulation. Accordingly, it was
not Caremar that was consulted, as ‘third party author’ of the
documents/data to which access was requested, but rather it
was the Italian authorities, which did not issue the documents
of the case and had no concerns relating to commercial inter-
ests, that were consulted.

that consultation was carried out

in an artificial
Further,
manner, given that the Member States have exclusive compe-
tence together with a right of veto which is binding on the
Commission.

(1) OJ C 106 of 30.04.2005, p. 43.

Action brought on 19 December 2005 — Associazione
italiana del risparmio gestito and Fineco Asset Manage-
ment v Commission of the European Communities

(Case T-445/05)

(2006/C 48/78)

Language of the case: Italian

This action concerns the same decision as that challenged in
Case T-424/05 Italian Republic v Commission. (1)

In support of their pleas, the applicants allege:

— inadequacy and inconsistency of the contested decision, in
that it concerns, first, the existence of an economic advan-
tage which is selective, as it is not clear from its wording
what economic advantage is conferred by the tax measures
at issue and what beneficiaries there are. Secondly, the
statement of reasons for the decision is also to be regarded
as inadequate as to the existence of a distortion of competi-
tion which may affect trade between the Member States;

— infringement of Article 87(1) of the EC Treaty, since the
reduction in the tax applicable to the income of undertak-
ings for collective investment
in transferable securities
(UCITS) specialising in shares of small or medium-sized
capitalisation companies (SMCC) does not give rise to State
aid. In that regard it is claimed, in particular, that the tax
reduction in question constitutes an economic advantage
for all the relevant stakeholders, not a selective one for the
managers of the undertakings. In fact, all Italian and Com-
munity independent asset management companies (società
di gestione del risparmio; SGR) may manage UCITS and all
Italian or Community open-ended investment companies
(SICAV) may act as SICAV specialising in SMCC. Further,
even if the measures at issue were to result in an economic
advantage for UCITS, they would not, however, give rise to
State aid, given that the investment funds consist of collec-
tions of assets that do not exist as independent entities, do
not have their own management bodies and do not pursue
economic objectives, and accordingly have no organs
which can manifest intent. Finally, the tax measures at issue
do not constitute economic advantages of a selective nature
for the SMCC.

In the alternative, the applicants claim that:

Parties

risparmio gestito and
Applicants: Associazione italiana del
Fineco Asset Management SpA (Italy) (represented by: Gabriele
Escalar and Giuseppe Maria Cipolla, lawyers)

— the tax measures in question must be regarded as compa-
tible with the common market, pursuant to Article 87(2)(a)
of the Treaty; and

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— annul Commission Decision No C(2005) 3302 of 6
September 2005 which brought proceedings C-19/2004 (ex
NN 163/03) to a close;

— order the defendant to pay the costs.

— the contested decision infringes Article 14 of Council Regu-
lation (EC) No 659/1999 of 22 March 1999 since recovery
was ordered from the investment vehicles in the form of
companies and from the undertakings managing the invest-
ment instruments that are established by contract.

(1) Not yet published in the OJ.