Appeal brought on 18 March 2009 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 18 December 2008 in Joined Cases T-211/04 and T-215/04: Government of Gibraltar and United Kingdom v Commission of the European Communities

(Case C-106/09 P)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: R. Lyal, V. Di Bucci, N. Khan, Agents)

Other parties to the proceedings: Government of Gibraltar, United Kingdom of Great Britain and Northern Ireland, Kingdom of Spain

Form of order sought

The appellant claims that the Court should:

set aside the judgment of the Court of First Instance (Third Chamber, Extended Composition) of 18 December 2008, notified to the Commission on 5 January 2009, in Joined Cases T-211/04 and T-215/04 Government of Gibraltar and United Kingdom v Commission;

reject the applications for annulment lodged by the Government of Gibraltar and by the United Kingdom; and

order the Governemnt of Gibraltar and the United Kingdom to pay the costs;

alternatively,

refer the cases back to the Court of First Instance for reconsideration; and

reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The Commission maintains that the contested judgment should be set aside on the following grounds:

The Court of First Instance erred in assessing the relationship between Article 87(1) EC and the competence of the Member States in tax matters;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by imposing an unjustified constraint on the assessment of suspected State aid measures;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by imposing an unjustified constraint on the exercise of review powers in respect of the identification of a common or "normal" tax system;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by considering that the common or "normal" tax system may result from the application of different techniques to different taxpayers;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by considering that the Commission had failed to identify the common or "normal" tax regime and to perform the required assessment to show the selective character of the measures at stake;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by failing to examine the three elements of selectivity identified in the contested decision.

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