Action brought on 4 June 2010 - Italy v Commission

(Case T-257/10)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Commission's decision of 24 March 2010 (C(2010) 1711 final) concerning State aid No C 4/2003 (ex NN 102/2002);

order the Commission to pay the costs.

Pleas in law and main arguments

The Italian Republic contests before the General Court the Commission's decision of 24 March 2010 (C(2010) 1711 final), concerning State aid No C 4/2003 (ex NN 102/2002), notified by letter of 25 March 2010 (SG Greffe (2010) D/4224. That decision - which was adopted following the judgment of the Court of Justice in Case C-494/06 P Commission v Italy and WAM [2009] ECR I-3639, dismissing the Commission's appeal against the judgment by which the General Court had upheld the actions brought by Italy and by WAM against Commission Decision 2006/177/EC concerning State aid C 4/2003 (ex NN 102/2002) granted by Italy in favour of WAM - categorised as incompatible with the common market the measures relating to the interest rate subsidies granted to WAM SpA under Law 394/81 concerning measures in support of Italian exports in 1995 and 2000.

In support of its action, the Italian Republic submits:

First plea in law. Infringement of Article 4(5) and (6) of Regulation (EC) No 659/99 ¹ and of the principle ne bis in idem. In this connection it is stated that the Commission's earlier decision, adopted in 2004, concerning the same aid was retrospectively annulled in its entirety by the General Court and the Court of Justice. That implied silent assent to the aid with effect from the decision to initiate a formal investigation in January 2003. The principle ne bis in idem also applies.

Second plea in law. Infringement of Article 108(2) and (3) TFEU and Articles 4, 6, 7, 10, 13 and 20 of Regulation (EC) 659/99. According to the Italian Republic, the new decision contains an entirely fresh examination of the aid in question. It should therefore have been adopted by means of a formal investigation procedure in the course of which both the Member State concerned and the interested parties were given an opportunity to make known their views.

Third plea in law. Contravention of the authority of res iudicata. In the view of the Italian Republic, the judgments of the General Court and of the Court of Justice regarding the earlier aid have the authority of res iudicata in relation to the fact that the aid does not facilitate exports but rather eases the cost burden of business penetration of third markets, and the fact that simple generalised references to the principles governing State aid which has a direct impact on the internal market are not enough by way of reasons to substantiate a decision on aid which has a direct impact on a third market and, what is more, a market of scant importance. As it is, in the new decision the Commission has ignored the res iudicata and paid no more than lip service to those principles.

Fourth plea in law. Breach of the principle of audi alteram partem and infringement of Article 20 of Regulation (EC) No 659/99. Lack of a preliminary investigation. The Italian Republic states in this connection that the 'preliminary investigation' on the basis of which the new decision was adopted took the form of a 2009 university research paper on the recipient undertaking, which the Commission neither sent to the interested parties nor discussed with them before adopting the new decision.

Fifth plea in law. Infringement of Article 107(1) TFEU and Articles 1(1)(d) and 2 of Regulation (EC) No 1998/2006. Contravention of res iudicata. Logical inconsistency in the decision. According to the Italian Republic, the aid in question fell within the scope of Regulation No 1998/2006 on 'de minimis' aid, in that it was worth less than EUR 200 000 over three years. For that reason, the aid did not constitute State aid and did not need to be notified. Regulation No 1998/2006 applied because it was a matter of res iudicata that the aid was not export aid.

Sixth plea in law. Infringement of Article 107(3)(c) and (e) TFEU and Article 4(1) and (2) of Regulation (EC) No 70/2001. In any event, the aid was compatible with the common market pursuant to Article 107(3)(c) TFEU because it was intended to promote the internationalisation of Community undertakings. The decision failed to consider that point.

Seventh plea in law. Infringement of Article 14 of Regulation (EC) No 659/99 and breach of the principle of proportionality. In any event, the aid to be recovered has been over-estimated: the actual aid is equal to the difference between the preferential rate and the reference rate at the time of the individual payments of the instalments, not to the difference between the preferential rate and the reference rate in effect at the (much earlier) time at which the financing was granted.

The Italian Republic also alleges breach of the duty to state reasons and of the principle of the protection of legitimate expectations.

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¹ - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).