Case T-335/08: Action brought on 14 August 2008 — BNP Paribas and BNL v Commission
Date: 2008-08-14
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), bank, restriction on competition, tax relief

25.10.2008

EN

Official Journal of the European Union

C 272/39

Form of order sought

Form of order sought

— Allow the claims set out in the introduction to the applica-
tion and, consequently, annul
the Regulation which has
imposed a ban, as from 16 June 2008, on fishing for
bluefin tuna in the Atlantic Ocean, east of longitude 45° W,
and in the Mediterranean Sea by purse seiners flying the
Italian flag (Article 1 of the Regulation) and has prohibited
Community operators, as
from
accepting landings, placing in cages for fattening or farming,
or transhipments in Community waters or ports of bluefin
tuna caught in the Atlantic Ocean, east of longitude 45° W,
and the Mediterranean Sea by such vessels (Article 3(1) of
the Regulation).

from 16 June 2008,

— Order the Commission to pay the costs of the proceedings,
pursuant to Article 87 of the Rules of Procedure of the
Court of First Instance, including the applicants' legal assis-
tance costs

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
on in Cast T-305/08 Italian Republic v Commission and Case
T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c. v Commission.
In particular, it is submitted that the legal basis of the contested
regulation is incorrect, in so far as Article 7 of Regulation (EC)
No 2371/2002 of 20 December 2002 on the conservation and
sustainable
the
Common Fisheries Policy (OJ 2002 L 358, p. 59) is not appro-
priate for the purpose of adopting the measures in the contested
regulation,
for which recourse should have been had to
Article 26(2) and (3) of Regulation No 2371/2002.

resources under

exploitation of

fisheries

Action brought on 14 August 2008 — BNP Paribas and
BNL v Commission

(Case T-335/08)

(2008/C 272/79)

Language of the case: Italian

Parties

Applicants: BNP Paribas and Banca Nazionale del Lavoro SpA
(BNL) (represented by: R. Silvestri, G. Escalar and M. Todino,
lawyers)

Defendant: Commission of the European Communities

— Annulment in its entirety of Commission Decision C(2008)
869 final of 11 March 2008 on state aid C-15/2007
(ex NN 20/2007),
implemented by Italy ‘concerning tax
incentives in favour of certain credit institutions undergoing
company reorganisation’

Pleas in law and main arguments

The applicants challenge the provision whereby Italian Law
No 350/2003,
in the part instituting a special system of tax
realignment (the ‘special system’) for the assets of certain credit
institutions resulting from reorganisations carried out under
Law No 218 of 30 July 1990 (‘the Amato law’) was declared
incompatible with Article 87 of the EC Treaty on state aid.
According to the Commission, the unlawfulness on the special
system under Article 87 of the Treaty is based on the assump-
tion that, by that system, the Italian legislature granted a ‘selec-
tive’ tax advantage solely to banking institutions concerned by
the reorganisations referred to in the Amato law, without
providing similar benefits for other institutions and other under-
takings in general.

In support of its arguments, the applicants maintain that the
Commission erroneously held that the special system of realign-
ment granted an economic advantage to the beneficiary compa-
nies and thus a form of unlawful aid. In reality, the system did
not confer a tax advantage, but merely constituted an optional
system for which companies might opt in anticipation of the
payment of tax on the basis of a replacement rate.

Even if the system in question did confer on the undertakings
some form of advantage, it did not constitute a state aid because
it was not selective in character. The tax system in question
constituted a coherent solution in relation to the general taxa-
tion system and was based on objective criteria, namely to allow
those credit
institutions concerned by the privatisations to
realign the contributions pursuant to the Amato law through
the imposition of a rate taking account of both the previous
partial taxation on increases in value already recorded and the
other
in connection with those contributions;
inconveniences not affecting all other undertakings — unlike
banks
to Law
No 350/2003 — which had received contributions in a context
different from that law, and for which a differently-functioning
realignment system was fully justified.

contributions pursuant

concerned by the

inelasticities

Secondly, the Commission's decision is vitiated by a glaring
defect of reasoning arising from the erroneous conviction that
Law No 350/2003 did not provide for any general realignment
system. Incorrectly holding that there was no general realign-
ment
system
complained of, the Commission failed to make any comparison
between the two systems in order to assess all
the factors
capable of having an impact on the overall tax burdens proper
to each system.

compared with the

system to be

special

C 272/40

EN

Official Journal of the European Union

25.10.2008

According to the applicants, even where a comparison between
the two systems was made on the basis of such factors, it is
obvious that, in comparison with the general system, the special
system confers practically no tax advantage in terms of the
applicable rate.

Action brought on 18 August 2008 — BVGD v
Commission

(Case T-339/08)

(2008/C 272/80)

Language of the case: English

Parties

Applicant: Belgische Vereniging van handelaars in- en uitvoerders
geslepen diamant (BVGD) (Antwerp, Belgium) (represented by:
L. Levi and C. Ronzi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— To declare the present action admissible;

— To annul the Commission decision dated 5 June 2008 by
which the Commission rejected the complaint lodged by the
applicant, in relation to the issue of input foreclosure, for
the reason that there are insufficient grounds for acting on it
(Case COMP/39.221/E-2-De Beers/DTC Supplier of Choice)

— To order the Commission to provide:

— a proper and meaningful version of the replies provided
by De Beers and Alrosa to the Commission in the frame-
work of the so-called ‘supplementary procedure’;

— all non-confidential versions of

the complaints and
related documents
submitted to the Commission
concerning the SOC and the Trade Administrative Agree-
ment between De Beers and Alrosa;

— all non-confidential versions of the investigation docu-
ments concerning the SOC and the Trade Administrative
Agreement between De Beers and Alrosa;

— the request filed by Alrosa in Case T-170/06;

— the statements of objections to which it refers in the

‘supplementary rejection decision’;

— the annual reports on De Beers' commitments drafted by

the Trustee;

— To order the Commission to pay all the costs.

Pleas in law and main arguments

Following the annulment by the Court of First Instance, on
11 July 2007, of the Commission decision of 22 February 2006
(Case T -170/06 Alrosa v Commission),
the Commission
decided to open a supplementary procedure based on Article 7
of Regulation (EC) No 773/2004, in order to assess the possible
impact of the annulment to the commitment decision on the
overall conclusion on input foreclosure as set out in the decision
of 26 January 2007 (2007)D/200338 (Case COMP/39.221/E-2-
De Beers/DTC Supplier of Choice) rejecting the applicant's
complaint filed with the Commission on 14 July 2005 alleging
in connection with the
violations of Articles 81 and 82 EC,
Supplier of Choice system for distribution of rough diamonds
applied by the De Beers group (‘the rejection decision’). The
legality of
this decision was challenged by the applicant by
action lodged at the Court on 6 April 2007, which is currently
subject to proceedings in Case T-104/07 (1).

By means of the present action the applicant seeks annulment
of Commission's supplementary decision of 5 June 2008 (2008)
D/203543 made pursuant to Regulation (EC) No 773/2004 (2)
by which the Commission concluded that
there were no
grounds to reconsider the rejection decision in so far as, in rela-
tion to input foreclosure, there was an insufficient degree of
Community interest for conducting a further investigation into
the alleged infringements.

The applicant raises three main pleas in law in support of its
claims:

First, the applicant claims that Article 7 of Regulation (EC)
No 773/2004 is not the correct legal basis for the supplemen-
tary procedure and the impugned decision. In fact, it submits
that the said provision does not empower the Commission to
re-examine a situation but only deals with the rejection of
complaints and allows the Commission thereby to inform the
complainant about insufficient grounds to act on a complaint,
setting a time-limit within which the complainant may express
its views in writing. Moreover, the applicant submits that the
Commission misapplied the general
legal principles on the
retroactive revocation of administrative acts.

that

its procedural

the applicant contends

rights
Second,
deriving from Articles 7 and 8 of Regulation (EC) No 773/2994
were breached since the applicant was prevented from exercising
its right of access to documents on which the Commission
based its provisional assessment. On this point the applicant
the limited
the Commission did not show that
argues that
access to the file could be justified by the necessity to guarantee
the protection of confidentiality understood under commercial
secrets.

Third, the applicant claims that the contested decision infringes
Articles 2 and 3 EC and the notion of Community interest, as
well as the duty to state reasons.

(1) OJ 2007 C 129, p. 18.
(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ 2004
L 123, p. 18).