Case C-80/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Ministero delle Finanze v Michele Franchetto
Date: 2008-02-25
Institutions: Court of Justice
Subjects: State aid, company law, competition law, control of State aid, cooperative, interpretation of the law, misuse of a right, tax relief

C 116/12

EN

Official Journal of the European Union

9.5.2008

Reference for a preliminary ruling from the Corte Suprema
lodged on 25 February 2008 —
di Cassazione (Italy)

Ministero delle Finanze v Michele Franchetto

(Case C-80/08)

(2008/C 116/21)

Language of the case: Italian

Referring court

La Corte Suprema di Cassazione

Parties to the main proceedings

Appellant: Ministero delle Finanze

Respondent: Michele Franchetto

Questions referred

1. Are the tax relief measures for cooperative societies, pursuant
to Articles 10, 11, 12, 13 and 14 of Presidential Decree
No 601 of 1973, compatible with the rules on competition
and, in particular, are they classifiable as state aid within the
meaning of Article 87 EC, especially given that the system of
monitoring and for the prevention of abuse provided for
under Legislative Decree No 1577 of 1947 is inadequate?

2. In particular, for the purposes of determining whether the
tax relief measures at issue are classifiable as state aid, can
those measures be regarded as proportionate in relation to
the objectives of cooperative undertakings; can the decision
on proportionality take into consideration not only the indi-
vidual measure but also the advantage conferred by the
measures as a whole, with the resulting distortion of compe-
tition?

3. For the purposes of the answer to the preceding questions,
taking account of the fact that the system of monitoring has
been seriously and further undermined by the reform of
company law, above all in relation to cooperatives that are
predominantly rather than fully mutual, under Law No 311
of 2004, and regardless of whether the tax relief measures in
question can be classified as state aid, can the use of the legal
form of a cooperative society, even in cases not involving
fraud or deception, be regarded as an abuse of law, where
that form is used solely or predominantly in order to achieve
a tax saving?

Appeal brought on 27 February 2008 by the Commission
of the European Communities against the judgment of the
Court of First
Instance (Second Chamber, Extended
Composition) delivered on 12 December 2007 in Joined
Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06
Ireland and Others v Commission

(Case C-89/08 P)

(2008/C 116/22)

Languages of the case: French, English and Italian

Parties

Appellant: Commission of the European Communities (repre-
sented by: V. Di Bucci and N. Khan, Agents)

Other parties to the proceedings: Ireland, French Republic, Italian
Republic, Eurallumina SpA, Aughinish Alumina Ltd

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities (Second Chamber, Extended Compo-
sition) of 12 December 2007 in Joined Cases T-50/06,
T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v
Commission;

— refer the cases back to the Court of First Instance for re-

examination;

— reserve the costs at both instances.

Pleas in law and main arguments

The appellant relies on six pleas in law in support of its appeal,
alleging, on the one hand, the lack of jurisdiction of the Court
of First Instance and procedural irregularities adversely affecting
the interests of the Commission (first two pleas in law) and, on
the other, breach of Community law in the area of State aid
(third to sixth pleas).

Instance breached the principle that

By its first plea, which has two parts, the appellant alleges the
the Court of First
the
subject-matter of an action is delimited in the application initi-
ating proceedings and that it ruled ultra petita in so far as, at
first instance, none of the appellants raised a plea in law alleging
infringement of Article 1(b)(v) of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed rules for
the application of Article [88 EC] (1). In addition, the plea raised
of its own motion by the Court of First Instance is not a plea
alleging failure to state reasons, which the Court may raise of its
own motion, but a plea going to the substance, which is not
based on the factual material included in the case-file.