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Action brought on 28 March 2009 - Ryanair v Commission

(Case T-123/09)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida and I-G. Metaxas­Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

To declare in accordance with Articles 230 and 231 EC that part of the European Commission's decision of 12 November 2008 in State aid case C26/2008 (Loan of EUR 300 million to Alitalia S.p.A.) is void insofar as it does not order the recovery of the aid from the successors of Alitalia and grants Italy additional time to implement its decision;

to declare in accordance with Articles 230 and 231 EC that the entire decision of 12 November 2008 in State aid case N510/2008 (Sale of assets of Alitalia S.p.A.) is void;

to order the Commission to bear its own costs and to pay those incurred by the applicant; and

to take such further action as the Court may deem appropriate.

Pleas in law and main arguments

The applicant contests the legality of two Commission decisions of 12 November 2008 in State aid Cases C 26/2008 (ex NN 31/08) on the loan of EUR 300 million granted to Alitalia notified under document number C(2008) 6743¹ and N510/2008 No C(2008) 6745 final regarding the procedure for the sale of the assets of Alitalia insofar as it found that the said procedure did not give rise to the grant of a State aid, provided that the Italian authorities complied with certain commitments.

In support of its application, the applicant puts forward the following pleas in law:

In respect to the first contested decision, the applicant submits that it is partially void because it does not order recovery from Alitalia's successors and it grants Italy additional time to recover the loan.

In respect to the second contested decision, the applicant claims that by not initiating a formal investigation procedure despite the existence of serious difficulties the Commission issued an incomplete and insufficient decision and violated the applicant's procedural rights available under Article 88(2) EC. In addition, the applicant contends that the Commission lacked competence for the adoption of a conditional decision of absence of aid after a simple preliminary examination. Moreover, the applicant submits that the Commission failed to examine all the relevant features of the measures and their context. In particular, according to the applicant the Commission failed to review whether the Italian extraordinary administration procedure in itself gave rise to the grant of aid and whether the Italian government had manipulated legislation to favour Compagnia Aerea Italiana's plan.

Further, the applicant claims that the Commission committed a manifest error of assessment by disregarding the possible alternatives to the sale of Alitalia's assets, such as a judicial liquidation or a share deal. The applicant also submits that the Commission failed to apply the market economy investor principle to the sale of Alitalia's assets, in particular, by not assessing the effect on price of the express condition of continuity of service and the implied condition of Italian origin of the buyer of Alitalia's passenger transport business, by not finding that the procedure for the sale of Alitalia's assets was obviously inadequate, and by failing to assess the true price offered by CAI and to define criteria for the determination of the market price of Alitalia's assets.

In addition, the applicant claims that the Commission committed an error in the identification of the party who must reimburse the loan, which should be CAI given the continuity between Alitalia and Compagnia Aerea Italiana. The applicant submits finally, that the Commission breached the obligation to state reasons.

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¹ - OJ 2009 L 52, p.3