2002/540/EC: Commission Decision of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Guipúzcoa (Spain) (Text with EEA relevance) (notified under document number C(2001) 1761)

• Articles: 5

Article 1

The State aid in the form of a reduction of the tax base, unlawfully put into effect by Spain in the Historic Territory of Guipúzcoa, in breach of Article 88(3) of the Treaty, through Article 26 of Norma Foral 7/1996 of 4 July, is incompatible with the common market.

Article 2

Spain shall abolish the aid scheme referred to in Article 1, since it is continuing to produce effects.

Article 3

1. Spain shall take all necessary measures to recover from the recipients the aid referred to in Article 1, which has been unlawfully made available to them.

Spain shall cancel all payment of outstanding aid.

2. Recovery shall be effected without delay in accordance with the procedures of national law, provided these allow the immediate and effective execution of this Decision. The sums to be recovered shall bear interest from the date on which they were available to the recipients until their actual recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.

Article 4

Spain shall inform the Commission, within two months of the date of notification of this Decision, of the measures taken to comply with it.

Article 5

This Decision is addressed to the Kingdom of Spain.

Done at Brussels, 11 July 2001.

For the Commission

Mario Monti

Member of the Commission

(1) OJ C 55, 26.2.2000, p. 2.

(2) Commission Decision 1999/718/EC (OJ L 292, 13.11.1999, p. 1).

(3) Commission Decision 2000/795/EC (OJ L 318, 16.12.2000, p. 36).

(4) See footnote 1.

(5) Boletín Oficial del Territorio Histórico de Álava, 5.4.2000.

(6) Territorio Histórico de Gipuzkoa: Norma Foral 7/1996 dated 4 July concerning the corporation tax.

(7) Boletín Oficial de Gipuzkoa, 17.7.1996.

(8) Only the parts essential to the assessment of the aid are cited.

(9) See point 3.2 of the Community guidelines on aid for SMEs (OJ C 213, 19.8.1992) and the Commission notice on the de minimis rule for State aid (OJ C 68, 6.3.1996).

(10) Law 22/1993, dated 29 December 1993, on tax measures and the reform of the legal system of the public service and unemployment protection (BOE, 31.12.1993). The measure consisted in the reduction of the corporation tax base by 95 % in the tax years 1994 to 1996 of firms set up in 1994 which invested at least ESP 15 million and created at least three, but less than 20, jobs.

(11) OJ C 384, 10.12.1998, p. 3.

(12) Judgment No 718/1999 of 30 September 1999.

(13) See in this respect the judgement rendered by the Court of Justice of the EC on 26 September 1996 regarding Case C-241/94.

(14) See the judgments of 30 September and 7 October 1999 with regard to the tax measures in question.

(15) Commission letter to Member States SG(89) D/5521 of 27 April 1989.

(16) Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, judgement by the Court of Justice dated 14 September 1994.

(17) The deadline for submitting comments was one month from the date of publication in the Official Journal of the European Communities, i.e. 26 February 2000.

(18) OJ L 83, 27.3.1999, p. 1.

(19) See Case 248/84 Germany v Commission [1994] ECR 4013, judgement rendered by the Court of Justice on 14 October 1987.

(20) Mr. Paxti Garrido Espinosa and Ms Victoria García Olea, "La dependencia exterior vasca en el periodo 1990-1995", Euskal Estatistika-Erakundea/Instituto Vasco de Estadística (EUSTAT), the statistical office of the Basque Government.

(21) Exports abroad accounted for 28,5 % of total exports (including sales to the rest of Spain) in 1990, and for 40,8 % five years later in 1995.

(22) "Estadística de Comercio Exterior para la Comunidad Autónoma de Euskadi en el año 1998", prepared by EUSTAT.

(23) See Case C-75/97 (Maribel) Belgium v Commission, paragraphs 48 and 51 (17 June 1999); Case T-298/97 Alzetta Mauro and others v Commission, paragraphs 80 to 82 (15 June 2000); the Opinion of Advocate General Ruiz-Jarabo in Case C-310/99 Italy v Commission, paragraphs 54 and 55 (17 May 2001); and the Opinion of Advocate General Saggio in Case C-156/98 Germany v Commission, paragraph 31 (27 January 2000), which ran thus: "It should be pointed out in this respect that, with regard to a general aid scheme, to be able to determine the effect of that scheme on trade, it is sufficient if, from an ex ante assessment, it can reasonably be considered that the said effect may come about". If the position of a firm (or, as in the present case, an indefinite number of firms) is reinforced by an aid scheme, this privilege may in principle affect competition between Member States.

(24) Empresas en Europa, 5o informe, EUROSTAT.

(25) Taken from the data in the table on p. 31 of the Report.

(26) Taken from the data in the table on p. 224 of the Report.

(27) Taken from the data in the table on p. 73 of the Report.

(28) See Case C-78/76 Steinike & Weinlig v Federal Republic of Germany, paragraph 24, judgement by the Court of Justice on 22 March 1977. On the other hand, Case C-313/90 Comité International de la rayonne et des fibres synthétiques and others v Commission, paragraph 45, judgement by the Court of Justice on 24 March 1993, states that neither the principle of equal treatment nor that of the protection of legitimate expectations may be relied upon in order to justify the repetition of an incorrect interpretation of a measure.

(29) See paragraph 27 of the Opinion of Advocate General Ruiz-Jarabo in Case C-6/97.

(30) Article 31 of the Spanish Constitution.

(31) The result of the assessment of the aid is the same, whether that assessment is based on the Commission notice on the de minimis rule for State aid (OJ C 68, 6.3.1996) or on Regulation 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ L 10, 13.1.2001, p. 30).

(32) Joined Cases T-132/96 and T-143/96 Freistaat Sachsen and others v Commission [1999] ECR II-3663, paragraph 300, judgement rendered by the Court of Justice on 15 December 1999.

(33) OJ L 134, 3.6.1993, p. 25.

(34) Nomenclature of territorial units for statistics.

(35) Per capita gross domestic product (GDP) measured in purchasing power standards (PPS).

(36) The references to the regional rules are confined, in the following recitals, to the Guidelines on national regional aid (98/C 74/06). In any event, the result of the assessment would be the same if the analysis were based on the earlier rules. See point 3.5 of the Guidelines on national regional aid (98/C 74/06).

(37) OJ C 25, 31.1.1996, p.3

(38) It is not in the list of outermost regions in Article 299 of the Treaty.

(39) According to point 3.14 of the Guidelines on national regional aid (98/C 74/06).

(40) For the sectoral rules currently in force see, in addition to the Official Journal of the European Communities, the website of the Directorate-General for Competition http://europa.eu.int/comm/competicion/state_aid/legislation/

(41) Commission letter to Member States SG(91)D/4577 of 4 March 1991. See also Case 142/87 Belgium v Commission [1990] ECR I-950, judgement by the Court of Justice dated 21 March 1990.