CELEX: C2002/233/29
Language: en
Date: 2002-09-28 00:00:00
Title: Case C-290/02: Action brought on 8 August 2002 by the Italian Republic against the Commission of the European Communities

C 233/18                EN                      Official Journal of the European Communities                                        28.9.2002
Pleas in law and main arguments                                            The applicant claims that the Court should:
—      Breach of Article 8 of Commission Regulation (EC)                   —      annul Article 2 of the Commission’s decision of 5 June
       No 1663/95 (2): the Commission adopted the decision                        2002 concerning the fiscal exemptions and loans on
       which is the subject of this action, including certain                     preferential terms granted by Italy in favour of public-
       corrections differing from those which may be directly                     service undertakings in the capital of which the State
       inferred from the documents produced by the Kingdom                        holds a majority interest, which reads as follows:
       of Spain, thereby failing to observe the procedure laid
       down in Article 8(1) of Regulation No 1663/95, which
       required it to wait for a reply from the Member State,                     ‘The three-year exemption from income tax provided for
       then to initiate a bilateral discussion to assess the                      by Article 3(70) of Law No 549 of 28 December 1995
       seriousness of the infringement and the harm caused to                     and by Article 66(14) of Decree-Law No 331 of 30 August
       the European Community, and, where appropriate, to                         1993, as converted into law by Law No 427 of 29 Octo-
       allow the Member State to take part in the conciliation                    ber 1993, and the advantages deriving from the loans
       procedure.                                                                 granted pursuant to Article 9a of Decree-Law No 318 of
                                                                                  1 July 1986, as converted into law, with amendments, by
       As a result of that failure, Spain has been prevented from                 Law No 488 of 9 August 1986, in favour of joint-stock
       adducing evidence and from submitting the documenta-                       companies established pursuant to Law No 142 of 8 June
       tion necessary to justify the expenditure made, something                  1990 in the capital of which the State holds a majority
       which may be regarded as entailing a breach of the rights                  interest, constitute State aid within the meaning of
       of defence.                                                                Article 87(1) of the Treaty. The aid in question is not
                                                                                  compatible with the common market.’
—      In the alternative: the figure to be corrected, in particular
       as regards the paying agency of Castilla-La Mancha, is
       wrong.
                                                                           Pleas in law and main arguments
( 1) Commission Decision of 12 June 2002 on the clearance of the
     accounts of Member States’ expenditure financed by the European
     Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee
     Section, for the 2001 financial year, OJ L 160 of 18.6.2002,
                                                                           The Italian Government maintains that the measures to which
     p. 28.                                                                the Commission’s decision relates could not be regarded as
( 2) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying           aid, at least at the time when they were adopted, and that,
     down detailed rules for the application of Council Regulation         consequently, they may now be regarded as existing aid within
     (EEC) No 729/70 regarding the procedure for the clearance of the      the meaning of Article 1(b) of Regulation (EC) No 659/
     accounts of the EAGGF Guarantee Section, OJ L 158 of 8.7.1995,        1999 (1).
     p. 6.
                                                                           Having regard to the factual and legal circumstances in
                                                                           which predominantly State-owned companies providing local
                                                                           services have been operating up until now — and, in particular,
                                                                           the system of exclusive rights which, in total compliance with
                                                                           the Treaty, has characterised the economic activities pursued
                                                                           by those companies — it has not been possible for them in
                                                                           any way to distort competition, so that the measures in
                                                                           question cannot be classified as aid within the meaning of
Action brought on 8 August 2002 by the Italian Republic
                                                                           Article 87(1) of the Treaty.
   against the Commission of the European Communities
                          (Case C-290/02)                                  In any event, those measures fully satisfy the conditions
                                                                           according to which they may be regarded as compatible
                                                                           aid within the meaning of Article 87(3)(c) and, possibly,
                          (2002/C 233/29)                                  Article 86(2) of the Treaty.
                                                                           (1 ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                                down detailed rules for the application of Article 93 of the EC
An action against the Commission of the European Communi-
                                                                                Treaty (OJ L 83 of 27.3.1999, p. 1).
ties was brought before the Court of Justice of the European
Communities on 8 August 2002 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Maurizio Fiorilli, avvocato dello Stato.