25.2.2006   

EN

Official Journal of the European Union

C 48/41

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annul Commission Decision No C(2005) 3302 of 6 September 2005 which brought proceedings C-19/2004 (ex NN 163/03) to a close;

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order the defendant to pay the costs.

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inadequacy and inconsistency of the contested decision, in that it concerns, first, the existence of an economic advantage which is selective, as it is not clear from its wording what economic advantage is conferred by the tax measures at issue and what beneficiaries there are. Secondly, the statement of reasons for the decision is also to be regarded as inadequate as to the existence of a distortion of competition which may affect trade between the Member States;

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infringement of Article 87(1) of the EC Treaty, since the reduction in the tax applicable to the income of undertakings for collective investment in transferable securities (UCITS) specialising in shares of small or medium-sized capitalisation companies (SMCC) does not give rise to State aid. In that regard it is claimed, in particular, that the tax reduction in question constitutes an economic advantage for all the relevant stakeholders, not a selective one for the managers of the undertakings. In fact, all Italian and Community independent asset management companies (società di gestione del risparmio; SGR) may manage UCITS and all Italian or Community open-ended investment companies (SICAV) may act as SICAV specialising in SMCC. Further, even if the measures at issue were to result in an economic advantage for UCITS, they would not, however, give rise to State aid, given that the investment funds consist of collections of assets that do not exist as independent entities, do not have their own management bodies and do not pursue economic objectives, and accordingly have no organs which can manifest intent. Finally, the tax measures at issue do not constitute economic advantages of a selective nature for the SMCC.

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the tax measures in question must be regarded as compatible with the common market, pursuant to Article 87(2)(a) of the Treaty; and

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the contested decision infringes Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 since recovery was ordered from the investment vehicles in the form of companies and from the undertakings managing the investment instruments that are established by contract.