CELEX: C2002/180/18
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-185/02: Action brought on 17 May 2002 by Commission of the European Communities against Portuguese Republic

C 180/10                 EN                    Official Journal of the European Communities                                        27.7.2002
4.    in the alternative, refer the case back to the Court of First       —     Error in law, when applying Articles 87 and 88 EC and
      Instance for judgment, if the Court of Justice should deem                Article 1 of Council Regulation (EC) No 659/1999 of
      that appropriate;                                                         22 March 1999 laying down detailed rules for the
                                                                                application of Article 93 of the EC Treaty (1), for consider-
                                                                                ing that the tax credit is not existing aid, and lack of
                                                                                statement of reasons: in the event that the Court should
5.    order the Commission to pay the costs in both sets of                     take the view that the Commission’s criteria regarding tax
      proceedings.                                                              measures have changed, the tax credit constitutes existing
                                                                                aid.
                                                                          —     Error in law for not considering applicable the principle
                                                                                of legitimate expectations: when Demesa applied for and
                                                                                was granted the tax credit, it was evident that the
                                                                                Commission’s criteria for deciding whether tax measures
Pleas in law and main arguments                                                 constituted State aid were very different from the present
                                                                                criteria. Since that was the situation at the material time,
                                                                                it seems excessive for the Court of First Instance to require
                                                                                Demesa to take the step of verifying whether the tax
—     Error in law in applying Article 87 EC to the 45 % tax                    measure under the legislation applicable to it fulfilled
      credit on investment and lack of statement of reasons in                  the requirements laid down in Article 87 and should,
      the judgment with regard to that aspect:                                  therefore, be notified to the Commission. Not even the
                                                                                Commission was certain in that respect, given its failure
                                                                                to act with regard to the measure concerned.
      —     Discretion of the public authorities: at issue in the
            proceedings before the Court of First Instance was
                                                                          (1) OJ 1999 L 83.
            Norma Foral No 22/1994 specifically as applied to
            the undertaking Demesa rather than in general,
            which is the subject of another decision of the
            Commission on State aid and of another action for
            annulment. As may be inferred from the decision
            granting application of the tax credit to Demesa,
            which constituted the subject-matter of proceedings
            before the Court of First Instance, the Diputación
            Foral de Alava merely applies the provision as
            it stands, without imposing any conditions. The               Action brought on 17 May 2002 by Commission of the
            existence of prior authorisation of the public auth-              European Communities against Portuguese Republic
            orities is entirely logical and sought by the undertak-
            ings themselves. In fact, such prior oversight gives
            ample legal certainty to the undertakings covered by                                    (Case C-185/02)
            that provision, since it implies that Hacienda Foral
            (regional finance ministry) has approved the
            amounts invested, including assets, etc, instead of                                     (2002/C 180/18)
            the uncertainty which would be entailed by the
            automatic application of the tax incentive and the
            possible subsequent inspection.
                                                                          An action against the Portuguese Republic was brought before
                                                                          the Court of Justice of the European Communities on 17 May
      —     requirement to invest ESP 2 500 million: this                 2002 by the Commission of the European Communities,
            requirement does not make the measure selective,              represented by António Caeiros, acting as Agents, with an
            since it is applied objectively to all undertakings in        address for service in Luxembourg.
            all sectors which invest that amount and is not
            restricted to undertakings with considerable finan-
            cial resources.                                               The applicant claims that the Court should:
      Even if it were selective, the tax credit would still be            —     Declare that, by failing to notify the plans and projects
      justified by the nature or scheme of the system in that it                provided for in Article 11 of Council Directive 96/
      is not an exceptional measure but a provision of general                  59/EC (1) of 16 September 1996 on the disposal of
      scope which applies to any undertaking making an initial                  polychlorinated biphenyls and polychlorinated terphen-
      investment in Alava which fulfils the requisite conditions                yls (PCB/PCT) and the summary of inventories provided
      laid down in the legislation in issue; such conditions                    for in Article 4(1) of the directive, the Portuguese Republic
      cannot in any event be described as extraordinary or                      has failed to fulfil its obligations under those provisions;
      discriminatory.                                                           and
 ---pagebreak--- 27.7.2002                EN                     Official Journal of the European Communities                                       C 180/11
—     Order the Portuguese Republic to pay the costs.                      The appellant claims that the Court should:
                                                                           1.    declare the present appeal admissible and consequently:
Pleas in law and main arguments
The Commission is of the view that the Portuguese Republic                 2.    set aside the judgment of the Court of First Instance of
has still not notified to it the plans and projects required by                  6 March 2002;
Article 11 of Directive 96/59/EC. The ‘National plan for the
decontamination and/or disposal of equipment listed in the
inventories and of the PCB contained in such equipment’                    3.    itself give final judgment in the matter on the basis of the
forwarded by the Portuguese Government, not having been                          appellant’s pleadings at first instance and, in particular,
adopted by the Government or published in the Diário da                         annul the decision of the Commission of 24 February
República (official gazette), does not appear to be binding.                    1999 inasmuch as the tax credit of 45 % of investment
Moreover, it fails to deal with a number of questions or                         provided for by the Norma Foral de Alava (Alava regional
restricts itself, with regard to others, to statements of intention.             Law) No 22/1994 does not constitute aid within the
Finally, it does not contain any reference to timings (timetable)                meaning of Article 87 EC or, if it should be deemed so to
for the measures which the Portuguese authorities intend to                      be, is existing aid, pursuant to Article 88 EC and Article 1
implement.                                                                       of the State aid Rules;
The Portuguese authorities have still not drawn up an inventory            4.    in the alternative, to refer the case back to the Court of
of the equipment containing in excess of 5 dm3 of PCB in                         First Instance for judgment, if the Court of Justice should
accordance with Article 4(1) of Directive 96/59/EC. Thus, the                    deem that appropriate;
‘summary’ which the Portuguese Government claims to have
transmitted to the Commission cannot be regarded as a
summary within the meaning of Article 4.                                   5.    order the Commission to pay the costs in both sets of
                                                                                 proceedings.
(1) OJ 1996 L 243, p. 31.
                                                                           Pleas in law and main arguments
Appeal brought on 21 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,                            are similar to the first two pleas in law in Case C-183/02 P (1),
Extended Composition, of the Court of First Instance of                    together with a third plea in law:
the European Communities in Joined Cases T-127/99,
T-129/99 and T-148/99 (not yet published) between
Territorio Histórico de Álava — Diputación Foral de                     —     infringement of Community law inasmuch as there was
Álava and Others and Commission of the European                                 no finding of misuse of powers by the Commission and
                            Communities                                          no reasons were provided in that respect: the public
                                                                                 at large is extremely well-aware of the problems at
                                                                                 Community level for harmonising tax, which would
                          (Case C-187/02 P)
                                                                                 allow undertakings and private individuals to operate in
                                                                                 fairer conditions. The unwillingness of a number of
                           (2002/C 180/19)                                       Member States makes it impossible to achieve the necess-
                                                                                 ary level of agreement within the Council. By means of
                                                                                 the indirect route of State aid proceedings, in which the
                                                                                 Commission enjoys wide powers, that institution has
An appeal against the judgment delivered on 6 March 2002                         succeeded in doing away with ‘controversial’ tax
by the Third Chamber, Extended Composition, of the Court of                      measures.
First Instance of the European Communities in Joined Cases
T-127/99, T-129/99 and T-148/99 between Territorio His-
tórico de Álava — Diputación Foral de Álava and Others and
Commission of the European Communities was brought                         (1) See p. 9 of this Official Journal.
before the Court of Justice of the European Communities on
21 May 2002 by Territorio Histórico de Alava — Diputación
Foral de Alava, represented by Antonio Creus Carreras and
Begoña Uriarte Valiente, Abogados, of Calle Velázquez No 63,
Madrid.