Action brought on 16 September 2008 - Regione autonoma della Sardegna v Commission

(Case T-394/08)

Language of the case: Italian

Parties

Applicant: Regione autonoma della Sardegna (represented by: A. Fantozzi, P. Carrozza and G. Mameli, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul the decision of the Commission of the European Communities of 3 July 2008 (State aid C1/2004 Italy - SG-Greffe (208) D/204339) concerning the aid scheme 'Regional Law No 9 of 1998 - Misapplication of aid N 272/98'.

Pleas in law and main arguments

Law No 9 of 11 March 1998 of the Region of Sardinia provided for credit incentives for the reclassification and adaptation of the hotel industry. The aid scheme thus set up was approved by the Commission. In spite of that, on 3 July 2008 the defendant communicated the contested decision in the present case to the Italian Government. According to that decision, in the aid scheme in question investment inducements were granted in respect of which no application for aid had been submitted before work was started on the project, in breach of the Guidelines on national regional aid. ¹

In support of its claims the applicant pleads infringement of essential procedural requirements on account of inconsistent reasons, the alleged irrelevance of the award in the assessment of the 'incentive effect' on the beneficiaries and therefore in the assessment of the requirement of the 'necessity of the aid'.

In particular it is considered in that regard that a correct assessment of the beneficiaries' award ought, in fact, to have led the Commission to give due weight to the fact that:

the aid scheme in question was the ideal continuation of a current lawful scheme in which the grant of aid took place regardless of the assessment as to whether or not the investments had been started;

the aid scheme in question was adopted by a regional law approved without any actual likelihood that the Guidelines on national regional aid could influence the legislative procedure, inasmuch as the same was approved only one day after the publication of those Guidelines in the Official Journal;

the beneficiary undertakings set up operations precisely in reliance on the aid measures, which therefore absolutely had an incentive effect.

The Commission errs, therefore, in seeking to assess the incentive effect of the aid by taking as a basis the unproven assumption that the beneficiary, given that it had not submitted the application prior to starting, had made the investment regardless of the aid.

The incorrectness of the Commission's assessment is made clear by the fact that it is impossible to argue that Regional Law 9/1998 is compatible from the outset with the Guidelines of 1998 cited above.

The defendant also errs in basing its assessment on a requirement which is not procedural but 'substantive', that of compatibility of the aid on a presumption of absence of the incentive effect where there was no application prior to the investment, laid down for the first time with reference to the national regional aid of the 'Guidelines', and therefore not known and not capable of being known in advance.

In addition, the defendant's assessment appears to infringe Article 88 of the Treaty and Regulation No 659/99/EC, in so far as the reasons for which the aid in question is described as unlawful rather than misuse of aid is completely omitted from the contested decision, when the description of the measure as misuse of aid excludes, in principle, the possibility of recovery.

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¹ - OJ C 74 of 10.3.1998, p. 9.