Action brought on 24 September 2009 - Italy v Commission

(Case T-379/09)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: F. Arena, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

Annul Commission Decision C (2009) 5497 of 13 July 2009 concerning State aid schemes No C 6/2004 (ex NN 70/01) and C 5/2005 (ex NN 71/04) implemented by Italy in favour of greenhouse growers (exemption from excise duties on gas oil used to heat greenhouses);

order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The Italian Government challenges before the Court of First Instance of the European Communities Commission Decision C (2009) 5497 of 13 July 2009 concerning State aid schemes No C 6/2004 (ex NN 70/01) and C 5/2005 (ex NN 71/04) implemented by Italy in favour of greenhouse growers (exemption from excise duties on gas oil used to heat greenhouses).

The applicant relies on five pleas in law in support of its action.

By its first plea, the applicant submits that the contested decision infringes Article 87(1) EC in so far as the legal provisions in question, which are regarded as constituting State aid incompatible with the common market, are not selective, on account of the fact that it is possible for any operator in the agricultural sector to benefit from the reduced rate of excise duty on gas oil used for heating greenhouses, and also the fact that there are fundamental differences between cultivation in greenhouses and cultivation in the open air, for which there are no production costs in respect of gas oil for heating purposes.

By the second plea, the applicant alleges infringement of Article 87(1) EC on the additional ground that the legal provisions in question do not in any way distort competition. In support of its position, the applicant refers to the Community Guidelines for State aid in the agriculture and forestry sector 2007 to 2013, paragraph 167 of which expressly states that total or partial exemptions from tax on motor fuels used for primary production in the agricultural sector will not unduly distort competition in the light of the small-scale structure of farms in the European Union.

By its third plea, the applicant alleges a failure to state reasons as regards the purported distortion of competition.

By its fourth plea, the applicant alleges infringement of Article 8 of Directive 92/81/EEC, ¹ Article 15 of Directive 2003/96/EC ² and Articles 33, 36 and 87 EC. It is submitted, in particular, that the exemptions were expressly authorised by those directives and that, in any event, the assessment as to whether the provisions in question are compatible with Community law must be carried out by taking account not only of the competition rules but also, and primarily, the provisions of the common agricultural policy. It is submitted in that connection that the common agricultural policy is intended to take precedence over the competition rules. It follows that as the contested measures are in line with the objectives set out in Article 33 EC, any argument that the application of the rules on State aid should take precedence is destined to fail.

By its fifth and last plea, the applicant complains of infringement of Article 87(3) EC, maintaining, in any event, that the derogation laid down in that provision is applicable, with specific reference to the applicability of the derogation for reasons of environmental protection referred to at paragraph 3.5 of the Community guidelines on State aid in the agriculture sector of 2000.

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¹ - Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12).

² - Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).