CELEX: C2002/144/106
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-88/02: Action brought on 26 March 2002 by Territorio Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa against Commission of the European Communities

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;
 ---pagebreak--- 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