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C 94/8 EN Official Journal of the European Communities 28.3.

98

SpA against Direzione Regionale per le Entrate della the contested decision. When it became aware that the
Toscana and Ufficio delle Imposte Dirette di Firenze on amendment to Regional Law No 9 had been made
the following question: before the procedure was under way, the Commission
decided to make a further separation and held that
Is a statutory tax on the net assets of companies with that Law marked another, fresh aid scheme, with
share capital which has effects economically equivalent to effect from 1996, to be considered separately. The
those of an indirect tax on capital contributions Italian Government and the parties concerned did not
compatible with Community law and in particular with become aware of this latter development until the
Directive 69/335/EEC (1) decision was notified to them. It should have been
communicated beforehand inasmuch as it amounted to
(1) OJ, English Special Edition 1969 (II), p. 412. an amendment to the subject matter of the procedure.
Failure to notify of this amendment timeously
prevented not only the Italian Government but also
the other interested parties from submitting relevant
and effective comments in order to protect their
respective interests.
Action brought on 22 January 1998 by the Italian
Republic against the Commission of the European 2. Infringement of Article 93 of the Treaty in that a
Communities distinction has been made between new and existing
aid Ð Unlawful treatment of existing aid as new aid
(Case C-15/98) Ð Assessment of aid as new vitiated by manifest
(98/C 94/16) errors.

Where amendments made to an existing scheme have


An action against the Commission of the European
not been communicated, aid granted after such
Communities was brought before the Court of Justice of
amendments may be deemed unlawful inasmuch as
the European Communities on 22 January 1998 by the
they are contrary to Article 93(3) of the Treaty only if
Italian Republic, represented by Umberto Leanza and by
such amendments have had a decisive effect on the
Pier Giorgio Ferri, Avvocato dello Stato, with an address
compatibility of the aid. Part III of the decision took
for service in Luxembourg at the Italian Embassy, 5 Rue
into consideration the factors listed in paragraphs (a)
Marie-AdeÂlaïde.
to (e) in order to ascertain whether the aid granted
after the 1988 Regional Law is new.
The applicant claims that the Court should:
So far as concerns (a) relating to the condition that the
Ð annul, pursuant to Article 173 of the EC Treaty, the undertaking should be established in Sardinia, the
decision of 21 October 1997 (1), Commission made a serious and manifest error in
ascribing to the Regional Law of 1988 the provision
Ð make an appropriate order in respect of the that the undertaking should have its head office and
Commission's letter of 14 November 1997, its port of registration in Sardinia. This is not a new
element because it was already provided for in the
Ð order the EC Commission to pay the costs. 1951 Law as amended in 1954.

Pleas in law and main arguments adduced in support: This error is also reflected in the assessment made of
the importance of the other elements dealt with under
The Italian Government considers the Commission's letters (b) to (d).
decision of 21 October 1997 caused it harm and is
unlawful on the following grounds: 3. The assessment as to compatibility of the aid for the
purposes of Article 92(1) was not carried out, is
insufficient, inadequate or, in any event, unreasoned.
1. Unlawfulness of the determination adopted in the
contested decision and enacted by way of the
Commission's letter of 14 November 1997, relating to The Commission has altogether failed to take a view
Regional Law No 9 of 15 February 1996 Ð on whether the aid is likely to distort or threaten to
Infringement of the procedural rules. distort competition. So far as concerns the other
ground of incompatibility, that is to say the effect on
trade between Member States, the Commission puts
The Commission has not given any explanation as to
forward reasons which are barely comprehensible,
why it chose to make a single aid scheme, albeit
illogical and in any event seriously inadequate.
amended over time, subject to two different
procedures. The Commission's choice is not only
unjustified, it appears inappropriate to the aim of 4. Unlawful assessment of the aid of the purposes of
ensuring the correct and transparent exercise of its Article 92(3)(a) and (c) of the Treaty.
power to check whether aid is compatible with the
common market. Instead, the Commission creates After concluding that the aid scheme is incompatible
confusion and makes the assessment process uncertain, within the meaning of Article 92(1) on the ground that
contributing considerably to the unlawfulness vitiating if affects trade between the Member States, the
28.3.98 EN Official Journal of the European Communities C 94/9

Commission examined whether it was possible to It cannot share the view of the French authorities that,
apply the derogations provided for in Article 92(2) technically, there are two types of contracts relating to
and (3). That point in the decision must suffer the underground work (electrification) and installation above
same consequences as the unlawful assessment carried ground' (street lighting) respectively; the two operations
out for the purposes of Article 92(1) denounced under are closely linked and reference to the NACE
the preceding submission which, should it be upheld, nomenclature and the CPC and ISIC nomenclatures is
would overturn all that has been decided on the irrelevant.
presumption that the aid is incompatible.

5. Unlawful order to recover the aid on the ground that Moreover, the Commission considers, in particular in view
it is in breach of the principles of protection of of the notices published in both the Official Journal of the
legitimate expectations, proportionality and equal European Communities and the French Bulletin Official
treatment. des Annonces des MarcheÂs Publics, that SYDEV must be
considered to be the only contracting entity in question
(1) Commission Decision 98/95/EC (OJ L 20, 27.1.1998, p. 30). rather than the individual associations of communes for
the electrification of the VendeÂe. Since the contracting
entity, for the purposes of the Directive, may be an entity
with no legal personality, the question as to who is a legal
party to the public contract is not decisive in order to
identify it as the contracting entity. Finally, the work
Action brought on 22 January 1998 by the Commission of concerned has only one purpose and is intended to fulfil a
the European Communities against the French Republic single economic and technical function, namely
(Case C-16/98) electrification over a number of years of the deÂpartement
(98/C 94/17) of the VendeÂe. Only the geographical location of the work
is varied within the same deÂpartement. That difference is
An action against the French Republic was brought before not such as to enable various works to be distinguished: it
the Court of Justice of the European Communities on merely means that several lots may be distinguished within
22 January 1998 by the Commission of the European the same works. However, pursuant to the second
Communities, represented by Hendrik van Lier, Legal paragraph of Article 14(10), in particular, where a work is
Adviser, and Olivier Couvert-CasteÂra, a national civil the subject of several lots, the value of each lot is to be
servant on secondment to the Legal Service, acting as taken into account when assessing the value of all the
Agents, with an address for service in Luxembourg at the contracts.
office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg. The notices of the award of contracts as published
The Commission of the European Communities claims confirm the Commission's view that the result of splitting
that the Court should: the contracts has been to reserve the contracts to local
undertakings, who were better informed as to the real
Ð declare that, in the course of the procurement scale of the programme of works. Those notices show in
procedure issued by the Syndicat DeÂpartement fact that all the contracts were awarded to a restricted
d'Electrification de la VendeÂe in December 1994 for group of undertakings of the deÂpartement of the VendeÂe.
the award of a contract for electrification and street
lighting work, the French Republic failed to fulfil its (1) OJ L 199, 9.8.1993, p. 84.
obligations under Articles 4(2), 14(1), 10 and 13, (2) Judgment in Case C-311/96 (OJ C 212, 12.7.1997, p. 6).
together with Articles 21, 24 and 25 of Council
Directive 93/38/EEC of 14 June 1993 coordinating the
procurement procedures of entities operating in the
water, energy, transport and telecommunications
sectors (1),

Ð order the French Republic to pay the costs. Reference for a preliminary ruling by the President of the
Arrondissementsrechtbank, The Hague, by order of
Pleas in law and main arguments adduced in support:
19 December 1997 in the case of Emesa Sugar (Free Zone)
When the procedure for the award of public contracts in NV and 1. the Netherlands State, 2. the Hoofdproduct-
question was held (end 1994 to early 1996), Directive 93/ schap voor Akkerbouwproducten and 3. Aruba
38/EEC of 14 June 1993 had still not been transposed into (Case C-17/98)
French law (2). None the less, the contracting entity was
required to apply the provisions of that Directive to that (98/C 94/18)
award procedure by reason of their direct effect as from
1 July 1994.
Reference has been made to the Court of Justice of the
The Commission considers that the entire electrification European Communities by order of the President of the
and street lighting work in question comes within the Arrondissementsrechtbank, The Hague, of 19 December
scope of one contracting entity and constitutes a single 1997, received at the Court Registry on 23 January 1998,
contract which was artificially split in order to avoid the for a preliminary ruling in the case of Emesa Sugar (Free
obligations of the Directive. Zone) NV and 1. the Netherlands State, 2. the Hoofdpro-