CELEX: C2002/144/107
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-92/02: Action brought on 28 March 2002 by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH and Wuppertaler Stadtwerke AG against the Commission of the European Communities

C 144/54               EN                     Official Journal of the European Communities                                      15.6.2002
—     in the alternative, annul Article 3 of that decision;                    finds therein that reserves for waste disposal by and the
                                                                               shutdown of nuclear power plants in the Federal Republic
                                                                               of Germany do not constitute aid within the meaning of
—     order the Commission to pay the costs.
                                                                               Article 87(1) EC;
                                                                         —     order the defendant to pay the costs of proceedings.
Pleas in law and main arguments
The applicants contest Commission Decision C(2001) 4448
final of 20 December 2001 declaring State aid incompatible               Pleas in law and main arguments
with the common market the exemption from company tax
arising from Article 14 of Norma Foral (Regional Law) No 11/
1993 of 26 June 1993 on urgent fiscal provisions to promote
investment and economic activity (Boletı́n Oficial de Gipuzkoa
                                                                         The applicants are all public utilities producing their own
No 128 of 8 July 1993), which provides for exemption from
                                                                         electricity. They operate their own conventional electricity
company tax for undertakings created between the entry into
                                                                         production plants and, as energy producers and suppliers, are
force of that Law and 31 December 1994, provided that they
                                                                         in direct competition with the operators of nuclear power
invest more than PTA 80 million (EUR 480 810), create more
                                                                         plants in the Federal Republic of Germany.
than 10 new jobs and have disbursed capital amounting to
more than PTA 20 million (EUR 120 202).
                                                                         According to the applicants, the commercial and tax law
The pleas in law and main arguments put forward by the                   situation in the Federal Republic of Germany places the
applicants are identical to those put forward in Case T-86/02.           operators of nuclear power plants at an advantage since they
                                                                         are able to include large amounts of the costs of the later
                                                                         shutdown of the nuclear power plants and of the disposal of
                                                                         radioactive waste in their provisions. The applicants claim
                                                                         that, as a result, the profit actually realised by such operators
                                                                         is reduced by the sum of the reserves, thus exempting them to
                                                                         a considerable extent from the liability to pay income tax. The
                                                                         operators are able to dispose freely of the sums included in the
                                                                         reserves. The applicants, however, do not enjoy such an
                                                                         advantage.
Action brought on 28 March 2002 by Stadtwerke Schwä-
bisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwer-
ke Uelzen GmbH and Wuppertaler Stadtwerke AG against
       the Commission of the European Communities
                                                                         The applicants, who have filed an application with the
                                                                         defendant for the opening of a procedure against the Federal
                          (Case T-92/02)                                 Republic of Germany pursuant to Article 87 EC (1), claim that
                                                                         the unequal treatment resulting from the tax law and fiscal
                                                                         practice in the Federal Republic of Germany constitutes non-
                        (2002/C 144/107)                                 notified and unlawful aid within the meaning of Article 87 EC
                                                                         which is incompatible with the common market. The tax
                                                                         impact of the reserves represents an intervention distorting an
                   (Language of the case: German)                        existing competitive relationship and affecting trade between
                                                                         Member States. It is not merely a case of the application of
                                                                         general rules of accounting and tax law but, rather, an
                                                                         unjustified exception to the basic structure of the German tax
                                                                         law system.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 March 2002 by Stadtwerke
Schwäbisch Hall GmbH, Schwäbisch Hall (Germany) and
3 other undertakings, represented by D.A. Fouquet, lawyer.               (1) The applicants have brought an action for failure to act with
                                                                             respect to this complaint (Case T-291/01 Dessauer Versorgungs-
                                                                             und Verkehrsgesellschaft mbH and Others v Commission, OJ 2002
                                                                             C 44, p. 19).
The applicants claim that the Court should:
—     annul Commission Decision C(2001) 3967 final of
      11 December 2001, to the extent that the Commission