CELEX: C2002/144/104
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-86/02: Action brought on 26 March 2002 by Territorio Histórico de Alava — Diputación Foral de Alava against Commission of the European Communities

C 144/52                EN                     Official Journal of the European Communities                                        15.6.2002
Decision of the oppo-           Refusal of registration in respect        1993 of 5 July 1993 on urgent fiscal provisions to promote
sition division:                of certain products                       investment and economic activity (Boletı́n Oficial del Territorio
                                                                          Histórico de Alava No 79 of 16 July 1993), which provides
Decision of the Board of        Partial annulment of the decision         for exemption from company tax for undertakings created
Appeal:                         of the Opposition Division and            between the entry into force of that Law and 31 December
                                refusal of registration in respect        1994, provided that they invest more than PTA 80 million
                                of an additional product (‘cheeses’)      (EUR 480 810), create more than 10 new jobs and have
                                                                          disbursed capital amounting to more than PTA 20 million
Pleas in law:                   —     Infringement       of    Arti-      (EUR 120 202).
                                      cle 8(1)(b) of Regulation
                                      No 40/94
                                —     Incorrect interpretation of
                                      the concept of risk of con-
                                      fusion                              The applicants put forward essentially 5 pleas in law:
                                                                          a.    infringement of the first paragraph of Article 87 EC
                                                                                inasmuch as the Commission committed a manifest error
                                                                                of assessment by considering that the fiscal measure at
                                                                                issue is prima facie State aid within the meaning of the
Action brought on 26 March 2002 by Territorio Histórico                        aforementioned article. In the applicant’s view, the pre-
de Alava — Diputación Foral de Alava against Com-                              sent case does not involve selective advantage, which is
            mission of the European Communities                                 typical of State aid within the meaning of that provision,
                                                                                since it is a measure which is established on the basis of
                           (Case T-86/02)                                       objective criteria and affects all economic operators (both
                                                                                natural and legal persons) in the same way.
                         (2002/C 144/104)
                    (Language of the case: Spanish)                       b.    in the alternative, with regard to the first plea in law,
                                                                                misinterpretation by the Commission of the concept of
                                                                                ‘State aid’. The applicants state that, should the Court take
                                                                                the view that the measure at issue is indeed State aid, it
                                                                                would in any event be as an existing aid scheme either
An action against the Commission of the European Communi-                       within the meaning of Article 1(b)(v) of Regulation (EC)
ties was brought before the Court of First Instance of the                      No 659/1999 since, when it was implemented, the
European Communities on 26 March 2002 by the Territorio                         measure was not ‘aid’, or within the meaning of 1(b)(ii) as
Histórico de Alava — Diputación Foral de Alava, Alava (Spain),                aid which, at the time, was impliedly authorised by the
represented by Ignacio Saenz-Cortabarria and Marta Morales                      Commission.
Isasi.
The applicants claim that the Court should:
                                                                          c.    in the further alternative to the first plea in law, failure to
                                                                                observe the procedures laid down by law. According to
—      annul the Commission Decision of 20 December 2001                        Article 88(1) EC and Regulation (EC) No 659/1999, the
       on the system of aid implemented by Spain in 1993 in                     proper procedure for the review of systems of existing
       favour of a number of newly-created undertakings in                      aid is as provided for in Articles 17 to 19 of that
       Alava;                                                                   regulation, not that followed by the Commission in the
                                                                                present case, which is the procedure to be applied to
—      in the alternative, annul Article 3 of that decision;                    unlawful aid.
—      order the Commission to pay the costs.
                                                                          d.    in the alternative with regard to the first three pleas in
                                                                                law, abuse by the Commission of its power to authorise
Pleas in law and main arguments                                                 aid under Article 87(3)(c) EC by considering the disputed
                                                                                fiscal measure to be operating aid and to declare, as a
                                                                                consequence, that it is aid incompatible with the common
The applicants contest Commission Decision C(2001) 4475                         market. The Commission improperly equates what is
final of 20 December 2001 declaring State aid incompatible                      nothing more than a means of assessing the element of
with the common market the exemption from company tax                           aid with the genuine concept of aid to investment or for
arising from Article 14 of Norma Foral (Regional Law) No 18/                    job creation. The fact that the amount of the aid as a
 ---pagebreak--- 15.6.2002              EN                     Official Journal of the European Communities                                        C 144/53
      percentage of the investment or the cost of salaries was           —     in the alternative, annul Article 3 of that decision;
      not set beforehand in no way precludes its being done
      subsequently with the aim of checking that it does not
      exceed the level of aid for a region authorised as part of         —     order the Commission to pay the costs.
      overall regional aid.
e.    in the alternative to all the above pleas in law, the order        Pleas in law and main arguments
      requiring recovery of the aid (first sentence of Article 3
      of the contested decision) infringes the last sentence of
      Article 14(1) of Regulation (EC) No 659/1999 given the
      exceptional circumstances of the present case (duration            The applicants contest Commission Decision C(2001) 4478
      of the preliminary examination, which lasted more than             final of 20 December 2001 declaring State aid incompatible
      79 months). The fact that the Commission examined the              with the common market the exemption from company tax
      fiscal scheme at issue in 1994 and did not find against it         arising from Article 14 of Norma Foral (Regional Law) No 5/
      gave rise to a well-founded expectation that it was                1993 of 24 June 1993 on urgent fiscal provisions to promote
      regarded as compliant with Community law, so that                  investment and economic activity (Boletı́n Oficial de Bizkaia
      Article 3 of the contested decision is contrary to the             No 154 of 7 July 1993), which provides for exemption from
      principles of legal certainty and legitimate expectations.         company tax for undertakings created between the entry into
                                                                         force of that Law and 31 December 1994, provided that they
                                                                         invest more than PTA 80 million (EUR 480 810), create more
                                                                         than 10 new jobs and have disbursed capital amounting to
                                                                         more than PTA 20 million (EUR 120 202).
                                                                         The pleas in law and main arguments put forward by the
                                                                         applicants are identical to those put forward in Case T-86/02.
Action brought on 26 March 2002 by Territorio Histórico
de Bizkaia — Diputación Foral de Bizkaia aygainst Com-
            mission of the European Communities
                          (Case T-87/02)                                 Action brought on 26 March 2002 by Territorio Histórico
                                                                         de Gipuzkoa — Diputación Foral de Gipuzkoa against
                                                                                  Commission of the European Communities
                        (2002/C 144/105)
                                                                                                   (Case T-88/02)
                  (Language of the case: Spanish)                                                (2002/C 144/106)
                                                                                            (Language of the case: Spanish)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               An action against the Commission of the European Communi-
European Communities on 26 March 2002 by the Territorio                  ties was brought before the Court of First Instance of the
Histórico de Bizkaia — Diputación Foral de Bizkaia, Bizkaia            European Communities on 26 March 2002 by the Territorio
(Spain), represented by Ignacio Saenz-Cortabarria and Marta              Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa,
Morales Isasi.                                                           Gipuzkoa (Spain), represented by Ignacio Saenz-Cortabarria
                                                                         and Marta Morales Isasi.
The applicants claim that the Court should:                              The applicants claim that the Court should:
—     annul the Commission Decision of 20 December 2001                  —     annul the Commission Decision of 20 December 2001
      on the system of aid implemented by Spain in 1993 in                     on the system of aid implemented by Spain in 1993 in
      favour of a number of newly-created undertakings in                      favour of a number of newly-created undertakings in
      Bizkaia;                                                                 Gipuzkoa;