CELEX: C2002/233/28
Language: en
Date: 2002-09-28 00:00:00
Title: Case C-287/02: Action brought on 9 August 2002 by the Kingdom of Spain against the Commission of the European Communities

28.9.2002              EN                    Official Journal of the European Communities                                          C 233/17
(England & Wales) (Civil Division) dated 5 July 2002, which             Pleas in law and main arguments
was received at the Court Registry on 31 July 2002, for
a preliminary ruling in the case of Andrew Owusu and
1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd, 4) The               The Italian Government claims that, by adopting the contested
Enchanted Garden Resorts & Spa Ltd, 5) Consulting Services              implementing regulation, the Commission has, de iure,
Ltd, 6) Town & Country Resorts Ltd, on the following                    accorded limited and inconsistent protection to ‘traditional
questions:                                                              terms’, in particular to Italian ‘traditional terms’, contrary to
                                                                        the guiding principles of the rules in the sector, as clarified in
                                                                        the preamble to Council Regulation (EC) No 1493/1999 (2).
(1) Is it inconsistent with the Brussels Convention on Jurisdic-        This has not only prejudiced the efforts directed towards the
      tion and the Enforcement of Judgments 1968, where a               reclassification of Community produce, but also the interests
      Claimant contends that jurisdiction is founded on                 of producers and consumers, as recognised by the Treaty, the
      Article 2, for a court of a Contracting State to exercise a       protection of which constitutes the purpose of the common
      discretionary power, available under its national law, to         agricultural policy and of free competition.
      decline to hear proceedings brought against a person
      domiciled in that State in favour of the courts of a non-
      Contracting State:                                                (1 ) OJ 2002 L 118, p. 1. Commission Regulation (EC) No 753/2002
                                                                             of 29 April 2002 laying down certain rules for applying Council
                                                                             Regulation (EC) No 1493/1999 as regards the description, desig-
      (a)  if the jurisdiction of no other Contracting State                 nation, presentation and protection of certain wine sector prod-
           under the 1968 Convention is in issue;                            ucts (OJ L 118, 4.5.2002, p. 1).
                                                                        (2 ) OJ 1999 L 179, p. 1. Council Regulation (EC) No 1493/1999 of
                                                                             17 May 1999 on the common organisation of the market in wine.
      (b) if the proceedings have no other connecting factors
           to any other Contracting State?
(2) If the answer to question (1)(a) or (1)(b) is yes, is it
      consistent in all the circumstances or only in some and if
      so in which?
                                                                        Action brought on 9 August 2002 by the Kingdom of
                                                                        Spain against the Commission of the European Communi-
                                                                                                          ties
Action brought on 25 July 2002 by the Italian Republic                                            (Case C-287/02)
  against the Commission of the European Communities
                                                                                                  (2002/C 233/28)
                         (Case C-283/02)
                         (2002/C 233/27)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
                                                                        Communities on 9 August 2002 by the Kingdom of Spain
                                                                        represented by Lourdes Fraguas Gadea, Abogada del Estado,
An action against the Commission of the European Communi-               with an address for service in Luxembourg at the Spanish
ties was brought before the Court of Justice of the European            Embassy, 4 - 6 Boulevard Emmanuel Servais.
Communities on 25 July 2002 by the Italian Republic,
represented by U. Leanza, acting as Agent and M. Fiorilli,
avvocato dello Stato.
                                                                        The applicant claims that the Court should:
The applicant claims that the Court should:                             —      annul the contested decision (1) as regards the financial
                                                                               corrections imposed on the Kingdom of Spain and
                                                                               contested by this action;
—     annul Article 24 and, to the extent of the complaints
      advanced to that effect, Annexes A and B of Commission
      Regulation (EC) No 753/2002 ( 1) of 29 April 2002.                —      order the Commission to pay the costs.
 ---pagebreak--- 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.