Judgments nº T-30/01 of Court of First Instance of the European Communities, September 09, 2009

• Resolution Date: September 09, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-30/01

In Joined Cases T-30/01 to T-32/01, T-86/02 to T-88/02,

Territorio Histórico de Álava - Diputación Foral de Álava (Spain), represented by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicant in Cases T-30/01 and T-86/02,

Territorio Histórico de Guipúzcoa - Diputación Foral de Guipúzcoa (Spain), represented by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicant in Cases T-31/01 and T-88/02,

Territorio Histórico de Vizcaya - Diputación Foral de Vizcaya (Spain), represented by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

applicant in Cases T-32/01 and T-87/02,

supported by

Comunidad autónoma del País Vasco - Gobierno Vasco (Spain), represented by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers,

and by

Confederación Empresarial Vasca (Confebask), established in Bilbao (Spain), represented by M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers,

interveners in Cases T-86/02 to T-88/02,

v

Commission of the European Communities, represented initially, in Cases T-30/01 to T-32/01, by J. Flett, S. Pardo and J. L. Buendía Sierra and, in Cases T-86/02 to T-88/02, by Buendía Sierra and F. Castillo de la Torre, and subsequently by Castillo de la Torre and C. Urraca Caviedes, acting as Agents,

defendant,

supported by

Comunidad autónoma de La Rioja (Spain), represented, in Cases T-86/02 and T-87/02, by J. M. Criado Gámez and, in Case T-88/02, by I. Serrano Blanco, lawyers,

intervener in Cases T-86/02 to T-88/02,

APPLICATION in Cases T-30/01 to T-32/01 for annulment of the Commission decision of 28 November 2000 to initiate the procedure under Article 88(2) EC in relation to the tax advantages in the form of corporation tax exemption for certain newly established firms granted by provisions adopted by the Diputación Foral de Álava, the Diputación Foral de Guipúzcoa and the Diputación Foral de Vizcaya [respectively the Álava, Guipúzcoa and Vizcaya provincial councils] and APPLICATION in Cases T-86/02 to T-88/02 for annulment of Commission Decisions 2003/28/EC, 2003/86/EC and 2003/192/EC of 20 December 2001 on a State aid scheme in the form of corporation tax exemption implemented by Spain in 1993 for certain newly established firms in Álava (T-86/02), Vizcaya (T-87/02) and Guipúzcoa (T-88/02) (OJ 2003 L 17, p. 20; OJ 2003 L 40, p. 11, and OJ 2003 L 77, p. 1, respectively)

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

composed of M. Vilaras, President, E. Martins Ribeiro, F. Dehousse (Rapporteur), D. -váby and K. Jürimäe, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 15 January 2008,

gives the following

Judgment

Legal context

I - Community legislation

1 Article 87 EC provides:

-1. Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.

-

3. The following may be considered to be compatible with the common market:

   -

   (c) aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest;

   --

   2 Article 88 EC provides:

   -1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the common market.

2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.

   -

3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.-

   3 Recital (4) in the preamble to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) states:

   -[I]n order to ensure legal certainty, it is appropriate to define the circumstances under which aid is to be considered as existing aid; - the completion and enhancement of the internal market is a gradual process, reflected in the permanent development of State aid policy; - following these developments, certain measures, which at the moment they were put into effect did not constitute State aid, may since have become aid.-

   4 Article 1 of Regulation No 659/1999 provides:

   -For the purpose of this Regulation:

   -

   (b) -existing aid- shall mean:

   (i) ... all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty;

   (ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;

   -

   (v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation;

   (c) -new aid- shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;

   -

   (f) -unlawful aid- shall mean new aid put into effect in contravention of Article [88](3) [EC];

   --.

   5 Under Article 2(1) and Article 3 of Regulation No 659/1999 -any plans to grant new aid shall be notified to the Commission in sufficient time by the Member State concerned- and cannot be put into effect -before the Commission has taken, or is deemed to have taken, a decision authorising such aid-.

   6 Article 6 of Regulation No 659/1999, on the formal investigation procedure, provides:

   -1. The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market. The decision shall call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which shall normally not exceed one month. In duly justified cases, the Commission may extend the prescribed period.

2. The comments received shall be submitted to the Member State concerned. If an interested party so requests, on grounds of potential damage, its identity shall be withheld from the Member State concerned. The Member State concerned may reply to the comments submitted within a prescribed period which shall normally not exceed one month. In duly justified cases, the Commission may extend the prescribed period.-

   7 In relation to measures which are not notified, Article 10(1) of Regulation No 659/1999 provides that, -where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay-.

   8 Article 13(1) of the same regulation provides that that examination is to result, where appropriate, in a decision to initiate a formal investigation procedure. Article 13(2) of that regulation states that in cases of possible unlawful aid the Commission is not bound by the time-limits applicable in relation to the preliminary examination and the formal investigation procedure in cases of notified aid.

   9 Article 14(1) of Regulation No 659/1999 states:

   -Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary .... The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law.-

   10 In its Communication on regional aid systems, sent to Member States on 21 December 1978 (OJ 1979 C 31, p. 9, -the 1978 communication on regional aid systems-), the Commission set out the principles of coordination applicable to regional aid systems and, by way of introduction, expressed -reservations in principle as to the compatibility of operating aids with the common market-. Furthermore, that communication fixed differentiated ceilings of aid intensity, as a percentage of the initial investment and in European units of account per job created by the initial investment (see points 2 and 3 of the communication).

   11 In its communication on aid granted illegally (OJ 1983 C 318, p. 3, -the 1983 communication on illegal aid-), the Commission reminded Member States of the obligation to notify aid, laid down in Article [88(3) EC], and informed potential recipients of State aid of the risk attaching to any aid granted illegally, in that any recipient of aid granted illegally, i.e. without the Commission having reached a final decision on its compatibility, might have to refund the aid. The Commission also stated that, whenever it became...