Action brought on 13 June 2013 – Adorisio and Others v Commission
(Case T-321/13)
Language of the case: English
Parties
Applicants: Stefania Adorisio (Roma, Italy) and 367 others (represented by: F. Sciaudone, L. Dezzani, D. Contini, R. Sciaudone and S. Frazzani, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the Court should:
Annul the Commission’s decision of 22 February 2013 (C(2013) 1053 final), relating to State aid SA.35382 (2013/N) – The Netherlands (Rescue SNS REAAL 2013), (OJ 2013 C 104, p. 3);
Order the defendant to pay the costs.
Pleas in law and main arguments
In support of the action, the applicants rely on five pleas in law.
First plea in law, alleging infringement Article 107(3)(b) TFEU and manifest error of assessment, as:
The contested aid measures are not related to exceptional circumstances, but rather to SNS REAAL’s management failure and poor business skills;
The alleged disturbance to the Dutch economy is not serious. The Dutch authorities have not proved the existence of serious social and economic difficulties;
The alleged disturbance does not concern even one entire economic sector, let alone the entire economy of the Netherlands. Indeed, the Dutch Government has not demonstrated that SNS Bank’s bankruptcy would have had systemic implications on the Dutch financial system and, more globally, on the whole Dutch economy and, in this respect, has not provided a quantitative estimate of the potential consequences of an insolvency of the bank for the entire economy.
Second plea in law, alleging violation of Article 4(3) of Council Regulation (EC) No 659/991 , as the Commission’s decision contains a number of conditions imposed by the Commission and aimed at amending the notified aid measures, which is contrary to Article 4(3) of Council Regulation (EC) No 659/99. Indeed, under such provision, the Commission is not granted, in the preliminary investigation phase, the power to intervene on the State aid measure notified and change it through conditions or other requests imposed on the Member State.
Third plea in law, alleging violation of Article 4(4) of Council Regulation (EC) No 659/99, as there were elements and circumstances proving that there were serious doubts about the compatibility of the measures with the common market, such as the inconsistency between the Commission’s statement “that Dutch banks performed well in the latest round of EBA (NB: European Banking Authority) stress tests thanks to a favourable weighting of risk-weighted assets (including mortgage loans) and should be able to withstand a heightened level of defaults” and the passive acceptance of the Dutch authorities’ argument that the Dutch banking sector is instead weak and that the use of the Dutch DGS (Deposit Guarantee Scheme) would have worsened the sector, or the fact that the contested decision contains conditions which represent another clear indication that the opening of the formal investigation procedure was necessary.
Fourth plea in law, alleging violation of the applicants’ rights, as:
There is no evidence that the applicants’ complaint against the State aid measures was the object of any investigation and analysis. Indeed it was not referred to in the contested decision;
The applicants were not informed in any way of the contested decision.
Fifth plea in law, alleging violation of Article 17 of the Charter of Fundamental Rights of the European Union, as:
The application of State aid rules cannot violate other EU rights, such as the right to property. In the instant case, the Commission could not rely on expropriation of investments without even analysing if that act was being carried out according to the law. Expropriation is per se a violation of the right to property and the Commission could not ignore this circumstance in its assessment;
The Commission should have verified the conditions and terms of such expropriation, in order to decide if that was an element that it could rely on in assessing the aid measures.
____________1 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)