Action brought on 26 November 2010 - Fri-El Acerra v Commission

(Case T-551/10)

Language of the case: Italian

Parties

Applicant: Fri-El Acerra Srl (Acerra, Naples, Italy) (represented by: M. Todino, lawyer, P. Fattori, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul in its entirety the European Commission's decision of 15 September 2010 concerning State aid No C 8/2009, by which the Commission found that the aid measure which the Italian Republic was planning to adopt in favour of Fri-El Acerra Srl was incompatible with the internal market;

order the Commission to pay the costs.

Pleas in law and main arguments

In the present proceedings, the applicant challenges a decision of the Commission which found that aid granted to the applicant by the Italian authorities in relation to the construction of a biomass power plant at Acerra was incompatible with the common market.

First plea in law: Misapplication of Article 107(3) TFEU, misapplication of the Guidelines on national regional aid and misinterpretation of the case-law on the incentive effect.

The applicant submits that the Commission misapplied the formal and chronological requirement laid down in point 38 of the Guidelines on national regional aid for 2007-2013, treating it as an absolute test of whether the aid has incentive effect and failing to consider the substantive nature of the aid. Thus the Commission interpreted that requirement in too formalistic a manner, contrary to the case-law on incentive effect, and failed to assess properly the documents submitted by the parties.

Second plea in law: Breach of the general principles of the Community legal order and, in particular, of the principle of tempus regit actum and the principle of the protection of legitimate expectations.

The applicant submits that the Commission erred in finding that the formal requirement laid down in the 2007 guidelines, which were published in 2006, was applicable to events which occurred before that publication. Such an application of that requirement is contrary to the fundamental principles of the Community legal order, such as the principle of tempus regit actum, which requires that a rule of law must be non-retroactive, and the principle of the protection of legitimate expectations.

Third plea in law: Manifest error of assessment, in so far as the Commission distorted the facts by incorrectly assessing the requirement for an increase in employment and the energy contribution to the industrial zone of Acerra, and by mistakenly concluding that the project made only a minimal contribution to regional energy policy and development.

This plea in law is based on the arguments that the defendant:

attributed, contrary to its own practice, artificial importance to the requirement of an increase in employment, viewing that requirement in isolation from the type of market and the economic context of the proposed aid;

failed also to assess correctly the direct contribution made to the industrial zone of Acerra by the electricity produced by Fri-El, by not taking into consideration the Italian energy legislation and the indirect incentive effect on the establishment of industry and on regional development;

failed to consider the contribution made by Fri-El Acerra to regional energy policy, one of the objectives of which is to obtain a specific volume of electricity from renewable sources by 2013.

Fourth plea in law: Manifest error of assessment, in so far as the Commission incorrectly assessed whether the aid was incompatible under the environmental guidelines.

In the applicant's submission, the Commission erred in maintaining that the Italian authorities and Fri-El Acerra had failed to supply appropriate documentation. In addition, the Commission did not apply the incentive requirement in accordance with the guidelines, which provide for a substantive test rather than a purely formal one.

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