Joined Cases C-186/02 P and C-188/02 P

Ramondín SA and Others and Territorio Histórico de Álava – Diputación Foral de Álava

v

Commission of the European Communities

(Appeal – State aid – Tax measures – Misuse of powers – Statement of reasons – New pleas in law)

Summary of the Judgment

2. Appeal – Grounds of appeal – Incorrect assessment of the facts – Inadmissible – Review by the Court of the assessment of the evidence – Excluded except in cases of distortion

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

3. Appeal – Grounds of appeal – Plea in law submitted for the first time in the appeal – Inadmissible

(Statute of the Court of Justice, Art. 58)

1. A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated.

(see para. 44)

2. The assessment of the facts does not, unless the clear sense of the evidence produced before the Court of First Instance was distorted, constitute a question of law which is subject, as such, to review by the Court of Justice in an appeal.

(see para. 46)

3. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance.

(see para. 60)

JUDGMENT OF THE COURT (Second Chamber) 11 November 2004 (1)

(Appeal – State aid – Tax measures – Misuse of powers – Statement of reasons – New pleas in law)

In Joined Cases C-186/02 P and C-188/02 P,TWO APPEALS under Article 49 of the EC Statute of the Court of Justice, lodged on 15 and 16 May 2002,

appellants in Case C-186/02 P,

appellant in Case C‑188/02 P,

the other parties to the proceedings being:

defendant at first instance, supported by

intervener in the appeals,

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur) and N. Colneric, Judges,

Advocate General: J. Kokott,

having regard to the written procedure, and, in Case C-188/02 P, further to the hearing on 11 March 2004,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

‘Investments in new fixed assets made between 1 January 1995 and 31 December 1995, which exceed ESP 2 500 million, in accordance with the Diputación Foral de Álava agreement, will receive a tax credit of 45% of the cost of investment determined by the Diputación Foral de Álava, to be applied to the definitive amount of tax payable.

Any tax credit not used up because it exceeds the amount of tax liability may be applied in the nine years following the year during which the Diputación Foral de Álava agreement was concluded.

The Diputación Foral de Álava agreement will lay down the time-limits, and any restrictions applicable in each case.

The advantages granted under this provision will be incompatible with any other tax advantage in respect of the same investments.

The Diputación Foral de Álava will also determine the length of the investment process, which may include investments made during the preparation of the project which is at the root of the investments.’

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Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds, the Court (Second Chamber) hereby:

Signatures.