62001B0077

1. Actions for annulment - Action based on Article 33 CS - Action brought by an intra-State authority - Inadmissible

(Art. 33, first and second paras, CS)

2. Actions for annulment - Action based on the second paragraph of Article 33 CS - Conditions for admissibility - Conditions more restrictive than those of the fourth paragraph of Article 230 EC - Restriction offset by more flexible rules on intervention

(Art. 33, second para., CS; Art. 230, fourth para., EC; ECSC Statute of the Court of Justice, Art. 34; EC Statute of the Court of Justice, Art. 37)

1. The first paragraph of Article 33 CS cannot be the basis for declaring admissible an action for annulment brought by intra-State authorities against a Commission decision declaring aid granted to steel undertakings to be incompatible with the common market in coal and steel. It is apparent from the general scheme of the Treaties that the term Member State, within the meaning of the institutional provisions and, in particular, those relating to proceedings before the courts, refers only to government authorities of the Member States and cannot include the governments of regions or autonomous communities, irrespective of the powers they may have.

Moreover, since such intra-State authorities are neither undertakings nor associations of undertakings within the meaning of the second paragraph of Article 33 CS, they cannot bring an action for annulment under that provision either.

( see paras 26-27, 29 )

2. The conditions for admissibility stated in the second paragraph of Article 33 CS are more restrictive than those in the fourth paragraph of Article 230 EC. That restrictiveness as regards admissibility is offset by the fact that the rules governing intervention in actions brought under the ECSC Treaty are more flexible than the rules under the EC Treaty.

Where a Member State brings before the Court of Justice an action for annulment against a decision adopted under the ECSC Treaty, not only undertakings and associations of undertakings within the meaning of the second paragraph of Article 33 CS, but any other natural or legal person, and therefore also the intra-State authorities of the Member States, may intervene in the proceedings under Article 34 of the ECSC Statute of the Court of Justice, if it can establish an interest in the outcome of the case. There is no such range of capacity to intervene in the course of an action for annulment brought by a Member State against a decision adopted under the EC Treaty. Under Article 37 of the EC Statute of the Court of Justice, natural and legal persons are not entitled to intervene in actions between Member States and the institutions.

( see paras 37-38 )

In Case T-77/01,

Territorio Histórico de Álava - Diputación Foral de Álava,

Territorio Histórico de Bizkaia - Diputación Foral de Bizkaia,

Territorio Histórico de Gipuzkoa - Diputación Foral de Gipuzkoa y Juntas Generales de Gipuzkoa,

Comunidad autónoma del País Vasco - Gobierno Vasco,

represented by R. Falcón y Tella, lawyer,

applicants,

v

Commission of the European Communities, represented by G. Rozet and J. Buendía Sierra, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 2001/168/ECSC of 31 October 2000 on Spain's corporation tax laws (OJ 2001 L 60, p. 57),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),

composed of: M. Jaeger, President, R. García-Valdecasas, K. Lenaerts, P. Lindh and J. Azizi, Judges,

Registrar: H. Jung,

makes the following

Order

The relevant provisions and the contested decision

1 Article 34 of Spanish Law No 43/1995 of 27 December 1995 on corporation tax (Boletín Oficial del Estado No 310 of 28 December 1995) is entitled Deduction for export activities and provides:

1. Carrying on export activities shall give rise to entitlement to the following deductions from the whole amount:

(a) 25 per cent of the amount of the investment actually made in setting up branches or permanent establishments abroad, as well as in purchasing shares in foreign companies or setting up subsidiaries directly involved in the exportation of goods or services ..., provided that the share held is, at least, 25 per cent of the capital of the subsidiary ...

(b) 25 per cent of the amount incurred by way of promotional and advertising costs over a number of years for the launching of products, opening and testing of markets abroad and attendance at fairs, exhibitions and similar events, including, in this connection, international events held in Spain.

...

2 The Territorios Históricos of Álava, Bizkaia and Gipuzkoa, which have independent taxation powers, reproduced in their tax legislation the tax deduction for export activities contained in Article 34 of Law No 43/1995. In the Territorio Histórico de Álava it became Article 43 of Norma Foral (Provincial Act) No 24/1996 of 5 July 1996 (Boletín Oficial del Territorio Histórico de Álava No 90 of 9 August 1996), in the Territorio Histórico de Bizkaia, Article 43 of Norma Foral No 3/1996 of 26 June 1996 (Boletín Oficial de Bizkaia No 135 of 11 July 1996), and in the Territorio Histórico de Gipuzkoa, Article 43 of Norma Foral No 7/1996 of 4 July 1996 (Boletín Oficial de Gipuzkoa No 138 of 17 July 1996).

3 By letter of 7 August 1997, the Commission informed the Spanish Government that it had decided to initiate proceedings under Article 6(5) of Commission Decision No 2496/96/ECSC of 18 December 1996 establishing Community rules for State aid to the steel industry (OJ 1996 L 338, p. 42).

4 On 31 October 2000, the Commission adopted Decision 2001/168/ECSC on Spain's corporation tax laws (OJ 2001 L 60, p. 57; the contested decision). The operative part of the decision states as follows:

Article 1

Any aid granted by Spain under:

(a) Article 34 of Act 43/1995 of 27 December 1995 on corporation tax;

(b) Article 43 of Provincial Act 3/96 of 26 June 1996 on corporation tax adopted by the [Diputación Foral de Bizkaia];

(c) Article 43 of Provincial Act 7/1996 of 4 July 1996 on corporation tax adopted by the [Diputación Foral de Gipuzkoa] or

(d) Article 43 of Provincial Act 24/1996 of 5 July 1996 on corporation tax adopted by the [Diputación Foral de Álava],

to ECSC steel undertakings established in Spain is incompatible with the common market in coal and steel.

Article 2

Spain shall forthwith take appropriate measures to ensure that ECSC steel undertakings established in Spain do not receive the aid referred to in Article 1.

...

Procedure and forms of order sought by the parties

5 It was in those circumstances that, by application lodged at the Registry of the Court of First Instance on 30 March 2001, the applicants, which are intra-State authorities, brought the present action.

6 The applicants claim that the Court should:

- annul Article 1(b), (c) and (d) of the contested decision;

- order the Commission to pay the costs.

7 By a separate document, lodged at the Court Registry on 2 July 2001, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance.

8 In its objection, the Commission contends that the Court should:

- declare the action inadmissible;

- or, in the alternative, decide, as a measure of organisation of procedure, to stay proceedings until the Court of Justice delivers judgment in Case C-501/00 Spain v Commission or, in the further alternative, decline jurisdiction in order that the Court of Justice may give a ruling on this action;

- order the applicants to pay the costs.

9 In their observations on the objection of inadmissibility, lodged at the Court Registry on 3 September 2001, the applicants claim that the Court should, subject always to adopting the measure of organisation of procedure of staying proceedings until the Court of Justice delivers judgment in Case C-501/00 Spain v Commission, declare the action admissible.

Admissibility

10 Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings relating to the objection of inadmissibility are to be oral, unless the Court of First Instance otherwise decides. In the present case, the Court considers that it has sufficient information from the documents in the file and that there is no need to open the oral procedure.

Arguments of the parties

11 The Commission maintains that the applicants do not have standing to bring proceedings under Article 33 CS. They cannot be treated in the same way as Member States, nor are they undertakings or associations of undertakings.

12 According to the Commission, the provisions of the EC Treaty are irrelevant to this case, since the ECSC Treaty is the basis for the contested decision. The principle of effective judicial protection does not permit the Community judicature to disregard the clear wording of Article 33 CS.

13 The applicants counter by stating that their action is admissible on the basis of Article 230 EC, Article 33 CS and the principle of effective judicial protection.

14 The applicants point out, first of all, that regional authorities which have granted State aid are deemed to be directly and individually concerned, within the meaning of the fourth paragraph of Article 230 EC, by a Commission decision declaring that aid incompatible with the common market (Case T-214/95 Vlaams Gewest v Commission [1998] ECR II-717, paragraph 29; Case T-288/97 Regione Autonoma Friuli-Venezia Giulia v Commission [1999] ECR II-1871, paragraphs 31 to 33, and Joined Cases T-132/96 and T-143/96 Freistaat Sachsen and Others v Commission [1999] ECR II-3663, paragraphs 81 to 92).

15 They argue that the tax deductions which the Commission classifies as aid apply under the same conditions to steel undertakings and non-steel undertakings. It follows, according to the applicants, that the measures referred to in the contested decision cannot, under any circumstances, constitute aid within the meaning of the ECSC Treaty. The action is therefore admissible under the fourth paragraph of Article 230 EC. Furthermore, the Commission cannot confine itself to acting on the basis of the ECSC Treaty if the recipients of the aid are both steel undertakings and non-steel undertakings. Consequently, the misuse of powers, which the Commission committed by not acting also on the basis of the EC Treaty, cannot deprive the applicants of the standing to bring proceedings conferred on them by the EC Treaty.

16 The applicants also maintain that the action is admissible under the second paragraph of Article 33 CS, which should be given a broad interpretation.

17 They point out, for that purpose, that the framers of the ECSC Treaty considered it to have been established that measures adopted under that Treaty can affect only undertakings which produce coal or steel. However, in the second paragraph of Article 33 CS, it was not their intention to preclude natural or legal persons without the status of undertakings from bringing an action for annulment when such persons are directly and individually concerned by the measure adopted. The applicants add that it is apparent from Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21) that the Council itself interprets the second paragraph of Article 33 CS in that way.

18 There is no shortage of precedents in which the Community judicature has given a broad interpretation to the provisions of the Treaties. The applicants refer, in particular, to Case C-221/88 Busseni [1990] ECR I-495, in which the Court of Justice concluded, notwithstanding the wording of Article 41 CS, that it had jurisdiction to hear a reference for a preliminary ruling on interpretation. They also refer to Case C-70/88 Parliament v Council [1990] ECR I-2041, in which the Court considered whether the European Parliament could bring an action for annulment under the EC Treaty.

19 Finally, the applicants rely on the principle of effective judicial protection. That principle is a fundamental right recognised by Community law (Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraphs 17 to 19) and rooted in the constitutional traditions common to the Member States and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The applicants also refer to the Charter of fundamental rights of the European Union, proclaimed in Nice on 7 December 2000, (OJ 2000 C 364, p. 1; the Charter of fundamental rights) and to Article 6(2) EU.

20 In the applicants' submission, the present action should be declared admissible in accordance with the principle of effective judicial protection. There are no alternative remedies to ensure the proper review of a Commission decision which disregards the particular fiscal powers of the applicants. The applicants maintain that, where the particular fiscal powers of regional authorities are affected by a Commission decision, those authorities must be able to bring before the Community judicature an action for annulment of the decision.

Findings of the Court

21 It must be stated, first of all, that the contested decision is based on the ECSC Treaty and Decision No 2496/96. Therefore, the admissibility of the present action must be assessed solely in the light of the provisions of the ECSC Treaty.

22 The question whether fiscal measures may constitute aid falling within the scope of the ECSC Treaty, even though they apply under the same conditions to steel and non-steel undertakings, or whether the Commission misused its powers by adopting the contested decision, forms part of the substance of the case and by no means establishes that the admissibility of an action for annulment of a decision adopted on the basis of the ECSC Treaty is governed by the provisions of Article 230 EC.

23 Next, it must be pointed out that the conditions for admissibility of actions for annulment brought under the ECSC Treaty are contained in Article 33 CS.

24 The first paragraph of Article 33 CS empowers the Council and the Member States to bring actions for annulment against Commission decisions and recommendations.

25 Under that provision, the Kingdom of Spain brought before the Court of Justice an action for annulment of the contested decision (Case C-501/00 Spain v Commission). By order of the President of the Court of Justice of 13 June 2001, the applicants in the present case were given leave to intervene in those proceedings in support of the form of order sought by the Kingdom of Spain.

26 However, the first paragraph of Article 33 CS cannot be the basis for declaring that the present action brought by intra-State authorities is admissible.

27 Indeed, it is apparent from the general scheme of the Treaties that the term Member State, within the meaning of the institutional provisions and, in particular, those relating to proceedings before the courts, refers only to government authorities of the Member States and cannot include the governments of regions or autonomous communities, irrespective of the powers they may have (orders in Case C-95/97 Région Wallonne v Commission [1997] ECR I-1787, paragraph 6, and Case C-180/97 Regione Toscana v Commission [1997] ECR I-5245, paragraph 6).

28 The second paragraph of Article 33 CS provides:

Undertakings or the associations [of undertakings] may ... institute proceedings against decisions or recommendations concerning them which are individual in character or against general decisions or recommendations which they consider to involve a misuse of powers affecting them.

29 The applicants are intra-State authorities. They are neither undertakings nor associations of undertakings within the meaning of the second paragraph of Article 33 CS.

30 As for the broad interpretation of that provision suggested by the applicants, it must be noted that it has already been held that Article 33 CS provides an exhaustive list of the persons entitled to bring an action for annulment (judgment in Case 222/83 Commune de Differdange and Others v Commission [1984] ECR 2889, paragraph 8, and order in Case T-70/97 Région wallonne v Commission [1997] ECR II-1513, paragraph 22).

31 The applicants cannot base an argument on Decision 93/350 which conferred jurisdiction on the Court of First Instance in actions brought by natural or legal persons pursuant to the second paragraph of Article 33[CS], Article 35 [CS], the first and second paragraphs of Article 40 [CS] (Article 1 amending Article 3(1) of Decision 88/591). By referring to natural or legal persons, the Council did not, and indeed could not, amend the second paragraph of Article 33 CS, which confers the right to bring an action for annulment solely on undertakings or associations of undertakings. Furthermore, the reference in Decision 93/350 to natural or legal persons, and not to undertakings or associations of undertakings, is explained, in particular, by the extension of the jurisdiction of the Court of First Instance in respect of actions brought under the first and second paragraphs of Article 40 CS, which authorises any injured party to bring an action for damages.

32 It must still be considered whether, in this case, there is, as in Busseni and in Parliament v Council (cited in paragraph 18 above), a fundamental interest which allows the Community judicature to depart from the wording of Article 33 CS. It should be pointed out that, in Busseni (paragraph 15), the Court of Justice took the need to ensure uniformity in the application of Community law as the basis for its conclusion that it had jurisdiction, notwithstanding the wording of Article 41 CS, to hear a reference for a preliminary ruling on interpretation. In its judgment in Parliament v Council (paragraph 26) the Court, referring to the need to maintain the institutional balance laid down in the Treaties establishing the European Communities, held that an action for annulment brought by the European Parliament was admissible, under certain conditions, even though that institution did not appear, in the original text of Article 173 of the EC Treaty (now Article 230 EC), amongst those able to bring such an action.

33 However, in the present case, the applicants do not give any reasons to establish that the present action should be declared admissible in order to ensure uniformity in the application of Community law or to maintain the institutional balance laid down in the ECSC Treaty. They refer solely to the fact that the contested decision affects their particular fiscal powers. There is therefore no reason to depart from the clear wording of the second paragraph of Article 33 CS, which confers the right to bring actions for annulment solely on undertakings and associations of undertakings.

34 It follows from all the above that the second paragraph of Article 33 CS does not confer on the applicants a right of action.

35 As for the argument relating to the principle of effective judicial protection, it must be pointed out that that is a general principle of Community law which underlies the constitutional traditions common to the Member States (Case 222/84 Johnston [1986] ECR 1651, paragraph 18). The principle is also laid down in Articles 6 and 13 of the ECHR and in Article 47 of the Charter of fundamental rights.

36 However, it is apparent from the general scheme of the ECSC Treaty that the protection of the interests of the intra-State authorities must be secured through the intervention of the Member State to which they belong (see to that effect the Opinion of Advocate General Lenz in Commune de Differdange and Others v Commission, cited in paragraph 30 above, at page 2903).

37 Although the conditions for admissibility stated in the second paragraph of Article 33 CS are, admittedly, more restrictive than those in the fourth paragraph of Article 230 EC, it must be stated that that restrictiveness as regards admissibility is offset by the fact that the rules governing intervention in actions brought under the ECSC Treaty are more flexible than the rules under the EC Treaty.

38 Where a Member State brings before the Court of Justice an action for annulment against a decision adopted under the ECSC Treaty, not only undertakings and associations of undertakings within the meaning of the second paragraph of Article 33 CS, but any other natural or legal person, and therefore also the intra-State authorities of the Member States, may intervene in those proceedings under Article 34 of the ECSC Statute of the Court of Justice, if it can establish an interest in the outcome of the case. There is no such range of capacity to intervene in the course of an action for annulment brought by a Member State against a decision adopted under the EC Treaty. Under Article 37 of the Statute of the Court of Justice, natural and legal persons are not entitled to intervene in actions between Member States and the institutions.

39 In those circumstances, the applicants, who were indeed given leave, by order of the President of the Court of Justice of 13 June 2001, to intervene in the action for annulment brought by Spain under the first paragraph of Article 33 CS against the contested decision (Case C-501/00), cannot claim that if the present action were declared inadmissible, they would be deprived of all judicial protection.

40 It is apparent from all the above that the action must be declared inadmissible.

Costs

41 Under Article 87(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the applicants have been unsuccessful, the latter must be ordered to bear the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)

hereby orders:

1. The action is dismissed as inadmissible.

2. The applicants are ordered to pay the costs.