Action brought on 21 May 2013 – Italy v Commission

(Case T-268/13)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, lawyer, G. Palmieri, Agent)

Defendant: European Commission

Forms of order sought

The applicant claims that the Court should:

Annul Commission Decision C(2013) 1264 final of 7 March 2013, notified on 11 March 2013, for the reasons set out in the three pleas in law.

Order the Commission to pay the costs.

Pleas in law and main arguments

By its present action, the Italian government challenges Commission Decision C(2013) 1264 final of 7 March 2013, notified on 11 March 2013, in which, executing the judgment of the Court of Justice of 17 November 2011 in Case C-496/09, the Commission instructed the Italian Republic to pay the amount of EUR 16 533 000 as a penalty payment.

By that judgment, the Court had, inter alia, ordered the Italian Republic to pay to the European Commission, into the ‘European Union own resources’ account, a penalty payment of an amount calculated by multiplying the basic amount of EUR 30 million by the percentage of the unlawful aid compared to the total amount not yet recovered on the date of delivery of the judgment, for every six months of delay in implementing the necessary measures to comply with the judgment of 1 April 2004 in Case C-99/02 Commission v Italy.

In support of its application, the applicant puts forward three pleas in law.

First plea, alleging infringement of Article 260(1) and the second subparagraph of Article 260(3) TFEU: infringement of the judgment being executed (judgment of 17 November 2011 in Case C-496/09 Commission v Italy) resulting from an erroneous interpretation of the paragraph of that judgment which, for the purposes of calculating the penalty payment, took as a reference the ‘amount not yet recovered on the date of delivery of the judgment’.

The Italian government submits that that executory paragraph of the judgment must be interpreted as referring not to the delivery date of the judgment but the date in which, in the proceedings, the period for adducing evidence in the proceedings terminated, that is to say the moment in which the factual situation on the basis of which the Court gave final judgment crystallised procedurally. The Italian Government submits that account must be taken of the recovery activity that it carried out in the course of the proceedings, but after the end of the investigative phase, in order to reduce the six-monthly penalty payment.

Second plea, alleging infringement of Article 260(1) and the second subparagraph of Article 260(3) TFEU: infringement of the judgment being executed, resulting from an erroneous interpretation of the paragraph of that judgment in which it is provided, for the purposes of calculating the penalty payment due for each six-month period, that account is not to be taken of the amount of aid ‘that has not yet been recovered, or not shown to have been recovered, at the end of the period concerned’.

The Italian government submits that that executory paragraph of the judgment must be interpreted as meaning that, for the purposes of that assessment, it is the production of the supporting evidence for the six-month reference period that is important and not the fact that it had been brought to the Commission’s attention before the end of that six-month period. The Italian government considers that the Commission’s interpretation to the contrary, according to which the Italian government is obliged to submit any evidence for the calculation of the six-monthly penalty payment by the last day of the relevant six-month period at the latest, thus excluding from the calculation any amount which was recovered during that period but which was only communicated afterwards to the Commission, is contrary to the principle of loyal cooperation and is not justified by the requirement imposed by the Court, which results in shortening in an impermissible manner the time at the Italian authorities’ disposal to comply with that requirement and thereby reduce that six-monthly penalty amount.

Third plea, alleging infringement of Article 260(1) and the second subparagraph of Article 260(3) TFEU: infringement of the judgment being executed, in relation to the debt owed by undertakings which have ‘have entered into an arrangement with creditors’ or are in ‘supervised administration’.

The decision does not deduct the debt owed by such undertakings which has resulted from related insolvency proceedings from the aid remaining due at the end of the six-month reference period, even though, according to the Italian government, the Member State took all the necessary care to recover that debt and, therefore, that debt should be excluded from the amount of aid owed under that judgment.