Notice for the OJ

 

Action brought on 21 November 2002 by Air One S.p.A. against the Commission of the European Communities

    (Case T-344/02)

    Language of the case: Italian

    

An action was brought before the Court of First Instance of the European Communities on 21 November 2002 by the abovementioned applicant, represented by G. Belotti, against the Commission of the European Communities.

The applicant claims that the Court should:

(annul the contested decision

(a)    both in so far as the Commission took formal notice of the payment of the second tranche of aid to Alitalia, which was authorised by Decision 97/789/EC of 15 July 1997 and confirmed by Decision 2001/723/EC of 18 July 2001, and decided not to object to the payment of the third tranche;

(b)    and in so far as it established that the new recapitalisation of Alitalia in the sum of EUR 1.432 million notified by the Italian authorities on 29 and 30 April 2002 does not constitute State aid;

(    in the alternative, annul the decision on one of the two grounds mentioned above;

(    order the defendant to pay the costs of the action in any event.

Pleas in law and main arguments:

By the contested decision, the Commission took formal notice of the payment of the second tranche of aid by the Italian Republic for the restructuring of Alitalia Linee Aeree Italiane S.p.A., authorised by Decision 97/789/EC of 15 July 1997 and confirmed by Decision 2001/723/EC of 18 July 2001, and decided not to object to the payment of the third tranche. It also decided that the new recapitalisation of Alitalia in the sum of EUR 1.432 million does not constitute State aid.

In support of its claims the applicant makes the following submissions:

(    Infringement of Article 88(2) of the Treaty, in that as Alitalia infringed at least three of the conditions for the authorisation of aid, the Commission ought to have allowed competing undertakings to submit observations before it assessed the compatibility of the payment of the second and third tranches of aid with the common market.

(    Infringement and erroneous application of the Community guidelines on State aid for rescuing and restructuring firms in difficulty, and a failure to state reasons in that, in so far as the Commission decided to take notice of the payment of the second tranche and not to object to the payment of the third, it did not take into consideration certain consequences of the unsuccessful outcome of the restructuring plan and of the infringement of certain conditions.

(    The aid used to cover Alitalia's financial losses after the restructuring plan had expired constituted unauthorised new aid. In any event, it constituted a misuse of aid, since it was used to cover financial losses occurring after the end of the restructuring plan, that is to say for a use which had not been authorised by the Commission.

(    As regards the defendant's determination that the new recapitalisation of Alitalia in the sum of EUR 1.432 million notified by the Italian authorities on 29 and 30 April 2002 does not constitute State aid, it should be stated, in particular in the light of the private investor principle and the absence of analysis of the prospects of profitability of the undertaking, that the Commission erred in not considering the following matters: notwithstanding the existence of option rights, private shareholders in Alitalia did not subscribe to the new increase in capital; private banks subscribed only after the formal subscription of the State and the price of the new shares was two-thirds of the price of the contemporaneous increase in the capital subscribed exclusively by the State by means of the second and third tranches of aid for restructuring.

____________