CELEX: C2004/021/25
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-469/03: Reference for a preliminary ruling by the Tribunale di Bologna — Sezione 1a penale — by order of that Court of 22 September 2003 in the criminal proceedings against Mario Filimeno Miraglia

C 21/14               EN                      Official Journal of the European Union                                           24.1.2004
Reference for a preliminary ruling by the Tribunale di                —     principally, if the state of the proceedings so permits,
Bologna — Sezione 1a penale — by order of that Court of                     uphold the claims made at first instance by the appellant
22 September 2003 in the criminal proceedings against                       and, in consequence, annul the Commission’s decision of
                    Mario Filimeno Miraglia                                 29 November 2000 on the aid scheme implemented by
                                                                            Spain in favour of the shipping company Ferries Golfo de
                                                                            Vizcaya or, secondarily, annul Article 2 of the Decision
                        (Case C-469/03)
                                                                            in so far as it orders repayment of ESP 985 500 000,
                                                                            together with interest;
                         (2004/C 21/25)
                                                                      —     if the preceding claim is not allowed, refer the matter
                                                                            back to the Court of First Instance;
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Bologna
— Sezione 1a penale — (Bologna District Court, First Criminal         —     in either case, order the Commission to pay the costs of
Collegiate Chamber) of 22 September 2003, received at the                   both sets of proceedings.
Court Registry on 10 November 2003, for a preliminary ruling
in the criminal proceedings against Mario Filimeno Miraglia
on the following question:
Does Article 54 of the Convention implementing the Schengen
Agreement of 14 June 1985 apply when the decision of the              Pleas in law and main arguments
court in the first State appears to discontinue prosecution
without adjudicating on the merits of the case and on the sole
premise that proceedings are taking place in another State?           —     Error of law, in that the Court of First Instance interpreted
                                                                            the ‘advantage’ element of the concept of State aid in the
                                                                            light of the principle of a private investor operating in
                                                                            normal market economy conditions, so introducing as a
                                                                            criterion of analysis the criterion of assessing the need for
                                                                            public intervention;
Appeal brought on 12 November 2003 (by fax of                         —     misinterpretation of Article 87 EC, inasmuch as the Court
10 November 2003) by the Diputación Foral de Bizkaia                        of First Instance inferred the existence of State aid because
against the judgment delivered on 5 August 2003 by the                      it considered that there was no need for the purchase of
First Chamber (Extended Composition) of the Court of                        vouchers;
First Instance of the European Communities in Joined
Cases T-116/01 and T-118/01 between P. & O. European
Ferries (Vizcaya) S.A. (T-116/01) and the Diputación                  —     error of law, in that the Court of First Instance did not
Foral de Vizcaya (T-118/01) and the Commission of the                       penalise the lack of economic analysis in the Com-
                    European Communities                                    mission’s decision, where it declared that all the sums
                                                                            paid constituted State aid;
                       (Case C-471/03 P)
                                                                      —     clear distortion by the Court of First Instance of the
                         (2004/C 21/26)                                     statement of reasons given for the decision, on the basis
                                                                            solely of lack of transparency in the selection of the
                                                                            shipping company, so as to exclude application of
                                                                            Article 87(2)(a) EC, which gave rise to infringement of
An appeal against the judgment delivered on 5 August 2003                   the right to a fair hearing because no real answer was
by the First Chamber (Extended Composition) of the Court of                 given to the arguments put forward in the application;
First Instance of the European Communities in Joined Cases
T-116/01 and T-118/01 between P. & O. European Ferries
(Vizcaya) S.A. (T-116/01) and the Diputación Foral de Vizcaya         —     obvious inaccuracy as regards matters taken by the
(T-118/01) and the Commission of the European Communities                   Court of First Instance to be proven facts and incorrect
was brought before the Court of Justice of the European                     classification of facts, in that the Court of First Instance
Communities on 12 November 2003 by the Diputación Foral                     considered that the aid contained in the 1995 agreement
de Bizkaia, represented by Marta Morales Isasì and Ignacio                  was ‘instituted and implemented in 1992’ and drew the
Sáenz-Cortabarria.                                                          legal inference therefrom that the aid was unlawful, which
                                                                            amounts to clear distortion of the facts, of the Decision
                                                                            itself and of the evidence, and breach of procedural
The appellant claims that the Court should:                                 rules, in that the Court of First Instance substituted the
                                                                            Commission’s reasoning for its own in classifying the aid
—     set aside the contested judgment;                                     at issue as illegal;