Case C-89/08 P: 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
Date: 2008-02-27
Institutions: Court of Justice
Subjects: European Commission, State aid, action for annulment (EU), appeal, control of State aid, excise duty, fuel, mineral oil, tax exemption

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.

9.5.2008

EN

Official Journal of the European Union

C 116/13

By its second plea, the appellant alleges that the Court of First
Instance breached the general principles of audi alteram partem
and respect for the rights of the defence, since it raised of its
own motion a plea which had never been argued, nor even
touched upon, in the course of the proceedings at first instance.

claims

By its third plea, which is comprised of three parts, the appel-
lant
infringed
Articles 230 EC and 253 EC in conjunction with Article 88 EC
and the rules governing procedure for State aid cases.

the Court of

Instance

First

that

In that regard, the appellant claims, first, that the classification
of the disputed measures as ‘new’ aid cannot be called into ques-
tion in an action brought against the final decision of
the
Commission, as the Member States and the other interested
parties could have contested, in relation to that point, the deci-
sion to open the formal investigation procedure. As the decision
to open that procedure was not contested, it became definitive
and, the final decision therefore constitutes, on that point, a
merely confirmatory act which is not actionable.

The appellant maintains, second, that the legality of an act
should be assessed by reference to the factual and legal situation
existing at the date on which the act was adopted.
In the
present case, nothing in the case-file suggests that the disputed
national measures did not constitute aid at the time when they
were introduced.

in any case,

is for the
Third,
the appellant claims that,
interested third
Member State and, where appropriate,
parties — and not for the Commission — to prove that the aid
is existing.
the Commission
cannot be required to provide a statement of reasons in that
regard.

In the absence of such proof,

for

it

fourth plea,

the appellant alleges

By its
infringement of
Article 253 EC, in conjunction with Articles 87(1) EC and 88(1)
EC, in so far as the Court of First Instance found a failure to
state reasons in respect of the applicability of Article 1(b)(v) of
Regulation No 659/1999, even though that article can apply
only to measures which did not constitute aid at the time of
their coming into force and that the Commission, in the deci-
sion which was contested at first instance, showed that the
disputed measures have constituted aid ever since they were
introduced. Moreover, none of the parties had shown that the
common market had evolved so that measures which did not
constitute aid at the time they came into force would become
aid thereafter.

By its fifth plea, the appellant alleges infringement of the same
rules, and of Article 1(b)(v) of Regulation No 659/1999, in so
far as the Court of First Instance imposed a specific obligation
on the Commission to state reasons as regards the application
of that article on account of statements made by the Council
shown,
and the Commission. However,
unequivocally, that in the light of the settled case-law of the
Court, such statements cannot have any impact on the assess-
ment of national measures regarding Community rules on State

the appellant has

aid, the concepts of aid and existing aid being strictly objective
concepts.

By its sixth plea, the appellant claims, finally, that the Court of
First Instance infringed Articles 88(1) and (2), and 253 EC, and
Articles 4(4) and 6(1) of Regulation 659/1999 in so far as it
annulled the decision of
the Commission in its entirety,
including that part of the decision which extended the formal
investigation period beyond 31 December 2003. However, the
Court of First Instance in no way explained how the alleged lack
of reasoning in relation to the application of Article 1(b)(v) of
Regulation No 659/1999 was sufficient to invalidate that aspect
of the decision. Moreover, the Court of First Instance failed to
have regard to the principle that, where a Member State does
not provide any evidence to suggest that the disputed measures
constitute existing aid,
those
measures as new aid, within the procedural context laid down
in Article 88(2) and (3) EC.

the Commission must

treat

(1) OJ 1999 L 83, p. 1.

Action brought on 28 February 2008 — Commission of
the European Communities v Kingdom of Belgium

(Case C-92/08)

(2008/C 116/23)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and J. Enegren, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven,
Agent)

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2003/72/EC of 22 July 2003 supplementing the
Statute for a European Cooperative Society with regard to
the involvement of employees (1), or by not ensuring that
management and labour introduce the required provisions
by way of agreement, or, in any case, by failing to communi-
cate those measures to the Commission,
the Kingdom
its obligations under
of Belgium has
Article 16(1) of that directive;

failed to fulfil

— order the Kingdom of Belgium to pay the costs.