Language of document :

Action brought on 28 September 2020 – Tirrenia di navigazione v Commission

(Case T-593/20)

Language of the case: Italian

Parties

Applicant: Tirrenia di navigazione SpA (Rome, Italy) (represented by: B. Nascimbene and F. Rossi Dal Pozzo, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the contested decision in so far as indicated in the application and specifically with respect to Articles 2, 3 and 4 only;

in the alternative, annul Articles 6 and 7 of the contested decision which order the immediate and effective recovery of the alleged aid;

order the Commission to pay the costs.

Pleas in law and main arguments

The present action has been brought against Articles 2, 3 and 4 of Decision C (2020) 1110 final of 2 March 2020. By that decision, the Commission held that the public service compensation granted to Tirrenia AS from 2009 and subsequently to its acquirer Compagnia Italiana di Navigazione for providing ferry services in Italy was compatible with the EU rules on State aid.

However it found that other measures granted to Tirrenia AS were incompatible with the EU rules on State aid. The Commission also held that the public service compensation granted between 1992 and 2008 to the companies of the former Tirrenia Group (Adriatica, Caremar, Saremar, Siremar and Toremar) was compatible with the EU rules on State aid with the exception of aid for a specific route, which was found to be incompatible.

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging infringement of Article 107(1) TFEU and Article 108(2) TFEU and the 2004 Rescue and Restructuring Guidelines.

The applicant claims in this regard that the contested decision contains an error of law as regards the application of Article 107(3)(b) TFEU and also as regards the 2004 Guidelines, in so far as it held that the rescue aid for Tirrenia AS was unlawfully prolonged and incompatible with the internal market.

In relation to that point the applicant clarifies that:

the restructuring plan existed before the expiry of the six-month time limit in question; the plan was ‘feasible, coherent and far-reaching’ so as to restore the viability of the Tirrenia business branch by means of liquidation, and was fully and completely implemented by the privatisation of the Tirrenia business branch;

paying back in full, in a single payment, the whole amount of the rescue aid fully honoured the commitment to reimburse the secured loan on completion of the privatisation procedures, using the amounts obtained by way of purchase price for the divestment of the company’s assets;

the basic principle underlying the rescue decision was respected: to allow the Tirrenia business branch to guarantee the continuity of maritime transport services by means of a temporary and reversible support measure, without interrupting the important essential public service during the period concerned, until the end of the privatisation process.

Second plea in law, alleging infringement of Article 107(1) TFEU and Article 108(2) TFEU in relation to exemptions from the payment of certain taxes.

The applicant claims in this regard that the right to the tax exemption at issue is subject to the conditions defined generally for insolvency proceedings and that, as the Commission acknowledges in the contested decision, it is not possible to anticipate, even now, whether the condition of a positive difference between the undertaking’s assets at the beginning of the extraordinary administration procedure, on the one hand, and the residual assets at the end of the extraordinary administration procedure, on the other, will be satisfied.

Therefore, the corporate income tax exemption is fundamentally conditional on the occurrence of future and uncertain events that are such as to have prevented, to date, the consolidation of any advantage for Tirrenia AS and to make it entirely possible, as the Commission acknowledges in the contested decision, that such an advantage might be realised in the future. As a result, in the light of all the conditions laid down by national law that must be satisfied in order to benefit from the advantage in question, it cannot be held that the hypothetical advantage deriving from the tax exemption has been acquired by Tirrenia AS. Consequently, that exemption falls outside the scope of the concept of State aid within the meaning of Article 107(1) TFEU and, as a result, is not State aid.

Moreover, assuming that the conditions that must be satisfied in order for the tax exemption in question to apply might materialise in future, it is doubtful that that would be the case when Tirrenia is fully liquidated.

The applicant further states that, even if the measure in question should materialise as an advantage, Tirrenia AS does not take part in trade within the European Union and holds no position on the national market which might be maintained or increased so that the opportunities for undertakings established in other Member States to penetrate the Italian market are reduced as a result.

Third plea in law, alleging failure to observe the principles of legal certainty and good administration in view of the duration of the procedure.

The applicant claims that the investigation procedure challenged in the present case was of an excessive duration, contrary to the principles of legal certainty and good administration.

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