Action brought on 19 April 2010 - AISCAT v Commission

(Case T-182/10)

Language of the case: Italian

Parties

Applicant: Associazone Italiana delle Società Concessionarie per la costruzione e l'esercizio di Autostrade e Trafori stradali (AISCAT) (Rome, Italy) (represented by: M. Maresca, lawyer)

Defendant: European Commission

Form of order sought

Annul the decision of the European Commission of 10 February 2010.

Pleas in law and main arguments

The present action seeks the annulment of the decision contained in the letter of the European Commission of 10 February 2010, which ruled out the possibility of establishing an infringement of Article 87 EC (now Article 107 TFEU) on the part of the Italian Republic on the basis that it awarded the concession for the construction and management of a section of motorway (known as the Passante di Mestre), without issuing an invitation to tender, to a semi-public company, CAV SpA (a limited company equally owned by ANAS SpA and the Veneto Region) and financed the construction of the motorway section by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway.

The applicant relies on two grounds in support of its claim that it can be established that the Italian Republic infringed Article 87 EC (now Article 107 TFEU).

First, the direct award by the Italian Republic to CAV of the concession for the construction and management of the Passante di Mestre by means of Article 2(290) of Law No 244 of 24 December 2007 constitutes State aid since, in spite of the fact that the lawful requirements relating to in house procurement were not met, the concession was awarded to a semi-public company whose statutes and management structure confer upon it an unfair competitive advantage. CAV is 50% owned by ANAS, which, whilst fulfilling a public function as a regulatory body, also operates as an undertaking (the construction and management of motorways) on the market which it itself regulates, to the rules of which it is subject and in respect of which it is itself a grantor of concessions.

Second, the fact that the Italian Republic approved the agreement concluded between ANAS (in its capacity as granting entity) and CAV for the financing of the Passante di Mestre by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway constitutes a grant of State aid to CAV.

The increase in the tariff was in fact the means by which traffic was diverted onto the new section of motorway (the Passante di Mestre) and, at the same time, brought about a fall in the volume of traffic on the competing section (the Tangenziale di Mestre), which was subject to the increase. The object of the aid is not, therefore, the sum deriving from the increase in the tariff in itself, but rather the competitive advantage which CAV derives from this, in contrast with the loss incurred by the companies operating the Tangenziale di Mestre.

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