Action brought on 14 August 2008 - BNP Paribas and BNL v Commission

(Case T-335/08)

Language of the case: Italian

Parties

Applicants: BNP Paribas and Banca Nazionale del Lavoro SpA (BNL) (represented by: R. Silvestri, G. Escalar and M. Todino, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annulment in its entirety of Commission Decision C(2008) 869 final of 11 March 2008 on state aid C-15/2007 (ex NN 20/2007), implemented by Italy "concerning tax incentives in favour of certain credit institutions undergoing company reorganisation"

Pleas in law and main arguments

The applicants challenge the provision whereby Italian Law No 350/2003, in the part instituting a special system of tax realignment (the "special system") for the assets of certain credit institutions resulting from reorganisations carried out under Law No 218 of 30 July 1990 ("the Amato law") was declared incompatible with Article 87 of the EC Treaty on state aid. According to the Commission, the unlawfulness on the special system under Article 87 of the Treaty is based on the assumption that, by that system, the Italian legislature granted a "selective" tax advantage solely to banking institutions concerned by the reorganisations referred to in the Amato law, without providing similar benefits for other institutions and other undertakings in general.

In support of its arguments, the applicants maintain that the Commission erroneously held that the special system of realignment granted an economic advantage to the beneficiary companies and thus a form of unlawful aid. In reality, the system did not confer a tax advantage, but merely constituted an optional system for which companies might opt in anticipation of the payment of tax on the basis of a replacement rate.

Even if the system in question did confer on the undertakings some form of advantage, it did not constitute a state aid because it was not selective in character. The tax system in question constituted a coherent solution in relation to the general taxation system and was based on objective criteria, namely to allow those credit institutions concerned by the privatisations to realign the contributions pursuant to the Amato law through the imposition of a rate taking account of both the previous partial taxation on increases in value already recorded and the other inelasticities in connection with those contributions; inconveniences not affecting all other undertakings - unlike banks concerned by the contributions pursuant to Law No 350/2003 - which had received contributions in a context different from that law, and for which a differently-functioning realignment system was fully justified.

Secondly, the Commission's decision is vitiated by a glaring defect of reasoning arising from the erroneous conviction that Law No 350/2003 did not provide for any general realignment system. Incorrectly holding that there was no general realignment system to be compared with the special system complained of, the Commission failed to make any comparison between the two systems in order to assess all the factors capable of having an impact on the overall tax burdens proper to each system.

According to the applicants, even where a comparison between the two systems was made on the basis of such factors, it is obvious that, in comparison with the general system, the special system confers practically no tax advantage in terms of the applicable rate.

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