Judgment of the Court of First Instance (Fifth Chamber) of 10 September 2009 – Banco Comercial dos Açores v Commission
(Case T-75/03)
State aid – Tax measures adopted by a regional or local authority – Reductions on the rate of income tax for natural and legal persons having their tax residence in the Azores – Decision declaring aid schemes incompatible with the common market and requiring recovery of aid paid out – Actions for annulment – Individual concern – Admissibility – Definition of State aid – Selective nature – Adverse effect on competition – Effect on trade between Member States – Equal treatment – Legitimate expectations – Legal certainty
1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme – Action by a recipient undertaking of individual aid granted under that scheme and having to be recovered – Admissibility (Art. 230, para. 4, EC) (see paras 38-47)
2. State aid – Concept – Selective nature of the measure – Tax measure adopted by an infra-State body – Rate of tax lower than national rate – Criteria for assessment (Art. 87(1) EC) (see paras 74-75)
3. State aid – Effect on trade between Member States – Adverse effect on competition – Criteria for assessment (Art. 87(1) EC) (see paras 86-87)
4. State aid – Prohibition – Exceptions – Discretion of the Commission – Judicial review – Limits (Art. 87(3) EC) (see para. 100)
5. State aid – Commission decision – Distinction between two sectors on the basis of evidence supplied by the Member State concerned – Breach of the principle of equal treatment – None (Art. 87(3)(a) EC) (see paras 111-116)
6. State aid – Recovery of unlawful aid – Aid granted in breach of the rules of procedure laid down in Article 88(3) EC – Possible legitimate expectation on the part of the beneficiaries – Legal certainty – Protection – Conditions and limits (Art. 88(3) EC) (see paras 124-126)
Re:
APPLICATION for annulment of the final part of Article 1, as well as Articles 2, 3 and 4 of Commission Decision 2003/442/EC of 11 December 2002 on the part of the scheme adapting the national tax system to the specific characteristics of the Autonomous Region of the Azores which concerns reductions in the rates of income and corporation tax (OJ 2003 L 150, p. 52).
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Banco Comercial dos Açores, SA to bear its own costs as well as the costs of the Commission of the European Communities;
3.
Orders Banco Espírito Santo dos Açores, SA to bear its own costs.
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