ORDER OF THE GENERAL COURT (Fifth Chamber)
3 October 2011 (*)
(State aid – Action for annulment – Applicants’ failure to act – No need to adjudicate)
In Case T‑128/09,
Meridiana SpA, established in Olbia (Italy),
Meridiana fly SpA, formerly Eurofly SpA, established in Milan (Italy),
represented initially by N. Green QC, K. Bacon, Barrister, C. Osti and A. Prastaro, lawyers,
applicants,
v
European Commission, represented by L. Flynn, D. Grespan and E. Righini, acting as Agents,
defendant,
supported by
Italian Republic, represented by G. Palmieri and P. Gentili, lawyers,
and by
Alitalia – Compagnia Aerea Italiana SpA, established in Fiumicino (Italy), represented by G.M. Roberti, G. Bellitti and I. Perego, lawyers,
interveners,
APPLICATION for annulment of Commission Decision C(2008) 6745 final of 12 November 2008 (State Aid No 510/2008 – Italy – Sale of assets of Alitalia),
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas (Rapporteur), President, V. Vadapalas and K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the following
Order
1 By application lodged at the Court Registry on 31 March 2009, the applicants, Meridiana SpA (‘Meridiana’) and Meridiana fly SpA (‘Meridiana fly’), brought an action for annulment of Commission Decision C(2008) 6745 final of 12 November 2008 (Case N 510/2008 – Italy – Sale of assets of Alitalia SpA) adopted following a preliminary examination under Article 88(3) EC, which declared that the measure notified, as amended by the undertakings entered into by the Italian authorities set out in that decision, did not represent the grant of State aid to the purchasers on condition that the Italian Republic complied in full with those undertakings that the sale of Alitalia assets would be for market value.
2 By documents lodged at the Court Registry on 23 July and 7 August 2009 respectively, the Italian Republic and Alitalia – Compagnia Aerea Italiana (‘Alitalia‑CAI’) applied for leave to intervene in support of the form of order sought by the Commission of the European Communities.
3 By orders of 19 October 2009, the President of the Eighth Chamber of the Court granted the Italian Republic and Alitalia-CAI leave to intervene.
4 By document lodged at the Court Registry on 1 February 2010, the applicants requested that a measure of organisation of procedure be adopted on the basis of Articles 49 and 64 of the Rules of Procedure of the General Court, in order for all the parties to be asked to give their views on the implications of the entry into force of the fourth paragraph of Article 263 TFEU for the admissibility of the action.
5 By decision of 11 March 2010 and after hearing the parties, the Court granted the measure of organisation of procedure requested by the applicants.
6 Since the composition of the Chambers of the Court had been changed, the Judge-Rapporteur was assigned to the Fifth Chamber, to which the present case was, accordingly, allocated.
7 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure, to put certain questions to the parties and to request Alitalia-CAI to lodge a document.
8 By letter lodged at the Court Registry on 16 March 2011, the lawyers who had brought the action on behalf of the applicants informed the Court that the applicants had decided not to renew their mandate and that, therefore, the lawyers would not be appearing at the hearing scheduled beforehand for 24 March 2011.
9 By decision of the President of the Chamber of 17 March 2011, the hearing was cancelled, and the parties were notified of this by letter from the Registrar of the Court served on them by fax the same day. In that context, the lawyers initially appointed by the applicants were informed that, as long as the applicants had not appointed new representatives, those lawyers would remain the sole interlocutors of the Court. Accordingly, they were requested to contact the applicants in order to inform them that it was for the latter to appoint new representatives and to provide the Court with information on that appointment by no later than 1 April 2011.
10 By letter lodged at the Court Registry on 1 April 2011, the lawyers initially appointed by the applicants informed the Court that they had forwarded the Court’s request to the applicants and had also contacted them by email and telephone. They stated, however, that since they had not received any communication from the applicants as of that date, they were not in a position to ascertain the applicants’ intentions as to the appointment of new representatives.
11 By letter of 15 April 2011, addressed to the lawyers initially appointed by the applicants, the Registrar of the Court requested them, in accordance with the Court’s decision of 13 April 2011, to inform the applicants by registered mail with acknowledgement of service that the latter were to appoint a new representative by no later than 2 May 2011. The Registrar stated that, in the absence of any information, the Court might declare of its own motion that the action had become devoid of purpose, and referred to the orders of 23 March 2004 in Case T-216/99 Ter Huurne’s Handelsmaatschappij v Commission, not published in the ECR, of 20 June 2008 in Case T-299/06 Leclercq v Commission, not published in the ECR, and of 2 September 2010 in Case T-123/08 Spitzer v OHIM – Homeland Housewares (Magic Butler), not published in the ECR.
12 By letter received at the Court Registry on 28 April 2011, the lawyers initially appointed by the applicants submitted proof that, on 20 April 2011, they had sent Meridiana a registered letter with acknowledgement of receipt, for the attention of S. G., lawyer, requesting the latter to inform Meridiana and Meridiana fly that they were to appoint new representatives to represent them before the Court and that that appointment had to be made, in accordance with the Court’s decision of 13 April 2011, by no latter than 2 May 2011. They also confirmed that they had informed the applicants that, if no response was received from them within that time-limit, the Court might declare of its own motion that the action had become devoid of purpose. Lastly, they informed the Court that, as a result of the delays in the delivery of post that they had observed, and since the registered letter had apparently not yet been delivered to its addressee, Meridiana might be unable to answer within the time-limit laid down by the Court.
13 By letter lodged at the Court Registry on 4 May 2011, the lawyers initially appointed by the applicants sent the Court a copy of a letter signed by Mr M.C. in his capacity as chief executive officer of Meridiana fly, which he had already sent to the Court Registry on 2 May 2011 but which had not been placed on the file because it had not been signed by a lawyer. By that letter, Mr M.C. stated on behalf of Meridiana fly that the latter had decided to confirm the appointment of the lawyers initially representing it in that case.
14 By letter lodged at the Court Registry on 5 May 2011, the lawyers initially appointed by the applicants submitted an extract from the companies register of the Chamber of Commerce of Sassari (Italy) relating to Meridiana fly, which showed that the new authority granted to them by Mr M.C. had been properly conferred.
15 Since the Court found, however, that the new authority granted to the lawyers initially appointed by the applicants related only to Meridiana fly, it decided to ask the parties to submit their observations, by no later than 6 June 2011, on a possible declaration by the Court that there was no need to adjudicate with regard to Meridiana. In addition, the Court decided to fix a hearing for 30 June 2011, to which the parties were invited to appear by letter from the Registrar of the Court of 26 May 2011.
16 By letter lodged at the Court Registry on 5 June 2011, Alitalia‑CAI submitted to the Court that the action should be declared devoid of purpose with regard to Meridiana.
17 By letter lodged at the Court Registry on 6 June 2011, the Commission stated that since Meridiana was no longer commercially active, as was apparent from the two press releases annexed to its letter, it no longer had a legal interest in bringing proceedings in the present case, since it was no longer able to obtain an advantage from a judgment annulling the contested decision.
18 By letter lodged at the Court Registry on 17 June 2011, Meridiana fly’s lawyers indicated to the Court that, despite the notifications annexed thereto, sent to their client by email on 11 May 2011, by fax on 20 and 27 May 2011, and by registered letter on 20 May 2011, requesting confirmation from their client and possibly from Meridiana that it was their intention to attend the hearing of 30 June 2011, the lawyers had not received a response as at the date set out in those notifications, namely, 9 June 2011. Consequently, they renounced their mandate to represent Meridiana fly and Meridiana, which they had communicated to the latter by fax and by registered letter of 14 June 2011, also annexed to their letter of 17 June 2011.
19 By letter of 20 June 2011, the Court requested the lawyers initially appointed by Meridiana fly to inform the latter, by all appropriate means, that it was to appoint a new representative by no later than 29 June 2011. In addition, it requested the parties to submit their oral observations, at the hearing of 30 June 2011, on a possible declaration by the Court that there was no need to adjudicate with regard to Meridiana fly.
20 By letter lodged at the Court Registry on 27 June 2011, the lawyers initially appointed by the applicants indicated to the Court that they had informed Meridiana fly by email, fax and registered letter with acknowledgement of receipt, on 20 June 2011, of the Court’s request and provided proof of that transmission to the Court.
21 At the hearing of 30 June 2011, the Court found that, since Meridiana fly had not appointed new representatives, the proceedings could be concerned only with the inferences to be drawn from that lack of representation. It therefore asked the parties to comment on whether the Court could declare of its own motion that the action had become devoid of purpose, pursuant to Article 113 of the Rules of Procedure.
22 The Commission and the interveners submitted their observations to the effect that the action had become devoid of purpose and that there was no need to adjudicate on it.
23 Alitalia‑CAI also requested that Meridiana fly should be ordered to pay the costs.
24 Given the absence of any response from the applicants to the letters from the Registry which were duly transmitted to them, it is appropriate that the Court declare of its own motion, in accordance with Article 113 of the Rules of Procedure, that the action has become devoid of purpose and that there is no need to adjudicate on it (see, to that effect, the orders in Ter Huurne’s Handelsmaatschappij v Commission, paragraph 20; Leclercq v Commission, paragraph 15; and Magic Butler, paragraph 8).
Costs
25 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the Court’s discretion.
26 Under Article 87(4) of those rules, Member States which have intervened in the proceedings are to bear their own costs.
27 In the circumstances of the present case, the applicants must be ordered to bear their own costs and to pay those incurred by the Commission and by Alitalia‑CAI.
28 In addition, the Italian Republic must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. There is no need to adjudicate on the present action.
2. Meridiana SpA and Meridiana fly SpA shall bear their own costs and pay the costs incurred by the European Commission and by Alitalia – Compagnia Aerea Italiana SpA.
3. The Italian Republic shall bear its own costs.
Luxembourg, 3 October 2011.