Action brought on 15 March 2013 - Sea Handling v Commission

(Case T-152/13)

Language of the case: Italian

Parties

Applicant: Sea Handling SpA (Somma Lombardo, Italy) (represented by: B. Nascimbene, F. Rossi dal Pozzo, M. Merla and L. Cappelletti, lawyers)

Defendant: European Commission

Form of order sought

Annul the contested decision, by which the Commission declared that the measures adopted by SEA, in the form of capital injections in favour of SEA Handling, constituted State aid incompatible with the common market and ordered its recovery;

in the alternative, annul Article 3 of the contested decision, by which the Commission ordered the recovery of the alleged State aid;

order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case is the same as that contested in Case T-125/13 Italian Republic v Commission.

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

First plea in law: infringement of procedural rules.

It is submitted in that regard that 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) has been infringed, that SEA Handling's procedural rights have been breached, and also that there has been a failure to undertake adequate preliminary inquiries in the light of the scope of the period under investigation, because of the lack of preliminary investigation and assessment in relation to the period 2006-2010.

It is further submitted that the principles of legal certainty and good administration have not been observed in relation to the duration of the procedure and, in particular, the unjustifiably lengthy preliminary investigation.

Second plea in law: infringement of Article 107(1) TFEU as regards the involvement of public resources.

On this point, it is submitted that there has been a failure to state the reasons and a failure to undertake adequate preliminary inquiries concerning the lack of a burden on the State finances; nor has it been shown that the resources were in fact available to the State.

Third plea in law: infringement of Article 107(1) TFEU as regards imputability.

The applicant submits that the contested decision is not based on an individual examination of the separate decisions to inject capital and the Commission has not provided an explanation as to why there was an overall scheme of State aid in favour of SEA Handling during the period 2002-2010.

In that connection, it is added that the evidence relied on by the Commission is not capable of showing that the measures may be imputed to the State and the Commission has failed to consider the evidence adduced by the parties to show that the measures cannot in fact be imputed to the State.

Fourth plea in law: infringement of Article 107(1) TFEU as regards the private investor principle.

In the applicant's submission, the Commission has not proved that in actual fact a private investor comparable to SEA would not have opted for the recapitalisation of its subsidiary, and the Commission has merely disputed in general terms the correctness of the parameters used by SEA for the purposes of its business choices.

It should also be found that there was a failure to place in context the measures within the SEA Group, that the facts were incorrectly evaluated in terms of the comparison between SEA Handling and the other market operators and that the private investor principle has been misapplied due to a failure to analyse the individual injections of capital.

Fifth plea in law: infringement of Article 107(3) TFEU.

The applicant submits on that point that the Commission erred in law with regard to the scope of the guidelines for the airport sector, inasmuch as those guidelines were not applicable to the present case.

It should also be found that there has been a manifest error of assessment and a failure to state the reasons in applying the rescuing and restructuring guidelines, in so far as the Commission (i) distorted the meaning of the requirement that the company's long-term viability must be restored, (ii) erred in rejecting the compensatory measures offered by SEA in the context of the restructuring of its subsidiary and (iii) failed to have due regard to the fact that the disputed capital injections were at all times carried out strictly on the basis of what was necessary for the restructuring of the company.

Sixth plea in law: unlawfulness of the order for recovery.

The applicant submits that the order for recovery is unlawful in that it infringes the principle of the protection of legitimate expectations and the obligation to state reasons.

____________