CELEX: C1998/094/15
Language: en
Date: 1998-03-28 00:00:00
Title: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Firenze by order of that court of 23 January 1997 in the case of CSAR Centro Servizi Acciai Rivestiti SpA against Direzione Regionale per le Entrate della Toscana and Ufficio delle Imposte Dirette di Firenze (Case C-13/98)

28.3.98               EN                 Official Journal of the European Communities                                     C 94/7
Westbroek, Brussels, with an address for service in                 Azienda Agricola Le Canne' Srl, represented by Giulio
Luxembourg at the Chambers of Aloyse May, 31 Grand                  Schiller, Giuseppe Carraro and Francesca Mazzonetto, of
Rue.                                                                the Padua Bar, with an address for service in Luxembourg
                                                                    at the Chambers of the last named, 62 Avenue Guillaume.
The appellants claim that the Court should:
                                                                    The appellant claims that the Court should:
Ð set aside the judgment of the Court of First Instance of
    the European Communities of 24 October 1997 (1) in
                                                                    Ð set aside the contested judgment of the Court of First
    Case T-244/94 Wirtschaftsvereinigung Stahl and
                                                                         Instance and uphold the claims put forward by the
    Others v. Commission,
                                                                         applicant at first instance,
Ð annul Commission Decision 94/259/ECSC of 12 April
    1994 concerning aid to be granted by Italy to the               Ð declare null and void the Commission's                telex
    public steel sector (Ilva group) (OJ L 112, 3.5.1994,                No 12 497 of 27 October 1995,
    p. 64),
                                                                    Ð order the Commission to pay restitution for damage
Ð order the Commission to pay the costs.                                 suffered in the amount set out in the application,
Pleas in law and main arguments adduced in support:                 Ð order the Commission to pay the costs incurred at first
                                                                         instance and in the appeal.
Infringement of Community law by the Court of First
Instance, in that it
                                                                    Pleas in law and main arguments adduced in support:
Ð misinterpreted the validity and scope of the Fifth Steel
    Aid Code,                                                       The applicant maintains that the Court of First Instance
                                                                    was wrong to consider that the principle of collegiality
Ð failed sufficiently to take into account that State               was observed. The Court of First Instance should have
    subsidies are no longer indispensable' to attain               declared the rules of procedure of the Commission
    objectives of the ECSC Treaty if they are granted more          inapplicable in so far as they allowed the acting head of
    than once only,                                                 unit to take the decision in question on his own authority.
Ð took no account of the fact that the contested                    It further maintains that the grounds of the Court of First
    Commission decision discloses a serious error of                Instance as to infringement of the principle of the right to
    assessment by the Commission simply because the                 be heard and infringement of the obligation to provide a
    decision makes its aim the strengthening of the Italian         statement of reasons were erroneous and inconsistent.
    steel industry,
                                                                    Finally, it maintains that the Court of First Instance
Ð proceeded from the incorrect assumption that                      infringed and misapplied Articles 44(1) and 47 of
    Article 4(c) of the ECSC Treaty does not impose a               Regulation (EEC) No 4028/86 (2) and Article 7 of
    strict prohibition of aid, but permits the Community            Regulation (EEC) No 1116/88 (3).
    institutions to approve all aid which may contribute to
    attaining the objectives of the Treaty.
                                                                    (1) OJ C 77, 16.3.1996, p. 11.
                                                                    (2) OJ L 376, 31.12.1986, p. 7.
( ) OJ C 387, 20.12.1997, p. 16.
 1
                                                                    (3) OJ L 112, 30.4.1988, p. 1.
Appeal brought on 16 January 1998 by Azienda Agricola
Le Canne' Srl, a company incorporated under Italian law,           Reference for a preliminary ruling by the Commissione
established in Porto Viro, against the judgment delivered           Tributaria Provinciale di Firenze by order of that court of
on 7 November 1997 by the Court of First Instance of the            23 January 1997 in the case of CSAR Centro Servizi
European Communities in Case T-218/95 between                       Acciai Rivestiti SpA against Direzione Regionale per le
Azienda Agricola Le Canne' Srl and Commission of the               Entrate della Toscana and Ufficio delle Imposte Dirette di
                    European Communities                                                         Firenze
                       (Case C-10/98 P)                                                      (Case C-13/98)
                         (98/C 94/14)                                                         (98/C 94/15)
An appeal against the judgment delivered on 7 November              Reference has been made to the Court of Justice of the
1997 by the Court of First Instance of the European                 European Communities by order of the Commissione Tri-
Communities in Case T-218/95 (1) between Azienda Agri-              butaria Provinciale di Firenze (Provincial Tax Court,
cola Le Canne' Srl and Commission of the European                  Florence) of 23 January 1997, which was received at the
Communities was brought before the Court of Justice of              Court Registry on 20 January 1998, for a preliminary
the European Communities on 16 January 1998 by                      ruling in the case of CSAR Centro Servizi Acciai Rivestiti
 ---pagebreak--- C 94/8                 EN                     Official Journal of the European Communities                                   28.3.98
SpA against Direzione Regionale per le Entrate della                        the contested decision. When it became aware that the
Toscana and Ufficio delle Imposte Dirette di Firenze on                     amendment to Regional Law No 9 had been made
the following question:                                                     before the procedure was under way, the Commission
                                                                            decided to make a further separation and held that
Is a statutory tax on the net assets of companies with                      that Law marked another, fresh aid scheme, with
share capital which has effects economically equivalent to                  effect from 1996, to be considered separately. The
those of an indirect tax on capital contributions                           Italian Government and the parties concerned did not
compatible with Community law and in particular with                        become aware of this latter development until the
Directive 69/335/EEC (1)                                                    decision was notified to them. It should have been
                                                                            communicated beforehand inasmuch as it amounted to
(1) OJ, English Special Edition 1969 (II), p. 412.                          an amendment to the subject matter of the procedure.
                                                                            Failure to notify of this amendment timeously
                                                                            prevented not only the Italian Government but also
                                                                            the other interested parties from submitting relevant
                                                                            and effective comments in order to protect their
                                                                            respective interests.
      Action brought on 22 January 1998 by the Italian
      Republic against the Commission of the European                    2. Infringement of Article 93 of the Treaty in that a
                          Communities                                       distinction has been made between new and existing
                                                                            aid Ð Unlawful treatment of existing aid as new aid
                         (Case C-15/98)                                     Ð Assessment of aid as new vitiated by manifest
                          (98/C 94/16)                                      errors.
                                                                            Where amendments made to an existing scheme have
An action against the Commission of the European
                                                                            not been communicated, aid granted after such
Communities was brought before the Court of Justice of
                                                                            amendments may be deemed unlawful inasmuch as
the European Communities on 22 January 1998 by the
                                                                            they are contrary to Article 93(3) of the Treaty only if
Italian Republic, represented by Umberto Leanza and by
                                                                            such amendments have had a decisive effect on the
Pier Giorgio Ferri, Avvocato dello Stato, with an address
                                                                            compatibility of the aid. Part III of the decision took
for service in Luxembourg at the Italian Embassy, 5 Rue
                                                                            into consideration the factors listed in paragraphs (a)
Marie-AdeÂlaïde.
                                                                            to (e) in order to ascertain whether the aid granted
                                                                            after the 1988 Regional Law is new.
The applicant claims that the Court should:
                                                                            So far as concerns (a) relating to the condition that the
Ð annul, pursuant to Article 173 of the EC Treaty, the                      undertaking should be established in Sardinia, the
     decision of 21 October 1997 (1),                                       Commission made a serious and manifest error in
                                                                            ascribing to the Regional Law of 1988 the provision
Ð make an appropriate order in respect                     of  the          that the undertaking should have its head office and
     Commission's letter of 14 November 1997,                               its port of registration in Sardinia. This is not a new
                                                                            element because it was already provided for in the
Ð order the EC Commission to pay the costs.                                 1951 Law as amended in 1954.
Pleas in law and main arguments adduced in support:                         This error is also reflected in the assessment made of
                                                                            the importance of the other elements dealt with under
The Italian Government considers the Commission's                           letters (b) to (d).
decision of 21 October 1997 caused it harm and is
unlawful on the following grounds:                                       3. The assessment as to compatibility of the aid for the
                                                                            purposes of Article 92(1) was not carried out, is
                                                                            insufficient, inadequate or, in any event, unreasoned.
1. Unlawfulness of the determination adopted in the
     contested decision and enacted by way of the
     Commission's letter of 14 November 1997, relating to                   The Commission has altogether failed to take a view
     Regional Law No 9 of 15 February 1996 Ð                                on whether the aid is likely to distort or threaten to
     Infringement of the procedural rules.                                  distort competition. So far as concerns the other
                                                                            ground of incompatibility, that is to say the effect on
                                                                            trade between Member States, the Commission puts
     The Commission has not given any explanation as to
                                                                            forward reasons which are barely comprehensible,
     why it chose to make a single aid scheme, albeit
                                                                            illogical and in any event seriously inadequate.
     amended over time, subject to two different
     procedures. The Commission's choice is not only
     unjustified, it appears inappropriate to the aim of                 4. Unlawful assessment of the aid of the purposes of
     ensuring the correct and transparent exercise of its                   Article 92(3)(a) and (c) of the Treaty.
     power to check whether aid is compatible with the
     common market. Instead, the Commission creates                         After concluding that the aid scheme is incompatible
     confusion and makes the assessment process uncertain,                  within the meaning of Article 92(1) on the ground that
     contributing considerably to the unlawfulness vitiating                if affects trade between the Member States, the