30.1.2010

Official Journal of the European Union

C 24/34

—

(Case C-458/09P)

2010/C 24/63

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri, Agent)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

—allow the present appeal;

—set aside the judgment of 4 September 2009 in Case T-211/05 Italy v Commission, notified by registered letter No 405966 of 4 September 2009, received on 8 September 2009, and as a consequence annul Decision 2006/261/EC of 16 March 2005 (notified under document number C(2005) 591) on aid scheme C 8/2004 (ex NN 164/2003) implemented by Italy in favour of newly listed companies.

Pleas in law and main arguments

Infringement of Articles 10 and 13 of Regulation No 659/99 ("Procedure regarding unlawful aid"), Article 88(2) EC and the principle of audi alteram partem. Manifest error of assessment of documents.

The Court of First Instance held that the letters of October and December 2003 from the Commission to Italy embodied a genuine preliminary discussion of the measures introduced by Decree Law 326/2003. The Court of First Instance did not regard those letters as consisting merely in general requests and in the negative assertion that the possibility could not be ruled out that the measures might entail State aid incompatible with the common market.

Breach of the principle of audi alteram partem.

In the decision initiating the formal investigation, the Commission had taken the fact that the tax concessions provided for were not available to companies established outside Italy as an indication that the measures were selective. In the final decision, on the other hand, the Commission held that the measures were selective because the tax concessions mainly favoured Italian undertakings — since they applied to their worldwide taxable income — as compared with Community companies, which are taxed in Italy only on the taxable income generated in that Member State. The Commission never warned the Italian Government of that change of approach and did not enable it to submit observations in that regard. The Court of First Instance erred in holding that the conduct of the Commission was lawful.

Infringement of Article 87(1) EC.

In any case, an advantage, such as the tax concession at issue, cannot be regarded as selective where it is available to all companies — whether Italian or Community — which meet the conditions for being listed on a regulated market of the European Union. The fact that Italian companies reap a greater benefit is a consequence of the tax system, which provides that taxation is to be based on the criterion of residence; however, when all companies are on an equal footing in relation to the tax measure in question, the mere fact that some benefit more than others cannot mean that the tax measure is selective. The Court of First Instance erred in holding that even such a difference can amount to selectivity.

Infringement of Article 87(1) EC. Failure to state adequate reasons.

The Court of First Instance erred in regarding the measure as selective in so far as it is not available to all companies. It is in fact available to all companies which meet the requirements for being listed on a regulated market. Furthermore, the decision to seek listing entails structural burdens of the highest order, which non-listed companies do not have to bear. The choice of listed companies is based on those objective criteria, and the advantage is consistent with and linked to the different situation — in terms of structural costs — in which the two categories of company are placed. That means that the measure is of general application and non-selective. The reasoning of the Court of First Instance, however, did not adequately address the evidence provided by Italy in that regard.

Infringement of Article 87(1) EC.

The Court of First Instance erred in holding that the measures are in any event selective on account of their brief duration, which means that companies which decide to seek listing at a later date are excluded. The temporary nature of the tax concession can be explained by the need for budget balances and the experimental nature of the measures; however, that does not affect their structure, which is the sole criterion on the basis of which their selectivity or non-selectivity falls to be determined.

Infringement of Article 87(3)(c) EC. Failure to state adequate reasons.

The measures, even if they are regarded as State aid, are compatible with the common market under Article 87(3)(c) EC, since they constitute investment aid to facilitate the development of certain economic activities. The Court of First Instance erred in regarding the measures as operating aid, disregarding the ongoing character of the effects produced by listing on the structure and operating effectiveness of the companies, and in not holding that the increase in listings on regulated markets is an activity considered worthy of fostering, even at Community level. The Court of First Instance should therefore have criticised the Commission for exercising its discretion in the matter without taking as a basis a correct assessment of the facts.

* * *

(1) OJ L 83, 27.3.1999, p. 1.

—