# C_2005296EN.01003702.xml

| 26.11.2005 | EN | Official Journal of the European Union | C 296/37 |
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26.11.2005

EN

Official Journal of the European Union

C 296/37

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Action brought on 7 October 2005 — Azienda Agricola le Canne v Commission

(Case T-375/05)

(2005/C 296/75)

Language of the case: Italian

Parties

Applicant(s): Azienda Agricola le Canne (Porto Viro, Italy) (represented by: Giuseppe Carraio and Francesco Mazzonetto, lawyers)

Applicant(s):

Defendant(s): Commission

Defendant(s):

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | declare the contested Commission Decision C(2005)2939 of 26 July 2005 null and void insofar as it reduces the aid granted to Azienda Agricola Le Canne s.r.l. by Decision C(90)1923/99 of 30 October 1990 pursuant to Regulation (EEC) No 4028/86; |
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declare the contested Commission Decision C(2005)2939 of 26 July 2005 null and void insofar as it reduces the aid granted to Azienda Agricola Le Canne s.r.l. by Decision C(90)1923/99 of 30 October 1990 pursuant to Regulation (EEC) No 4028/86;

| — | order the Commission to pay damages to make good the loss allegedly suffered in an amount not less than the portion of the subsidies not yet paid, with interest at the rate charged to the applicant by the bank on the whole balance of the sums originally owed on the basis of Decision C(90)1923/99 of 30 October 1990, to run from the date of the annulled decision (27 October 1995) until payment of the total aid owed; |
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order the Commission to pay damages to make good the loss allegedly suffered in an amount not less than the portion of the subsidies not yet paid, with interest at the rate charged to the applicant by the bank on the whole balance of the sums originally owed on the basis of Decision C(90)1923/99 of 30 October 1990, to run from the date of the annulled decision (27 October 1995) until payment of the total aid owed;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

The application seeks the annulment of Commission Decision C(2005)2939 of 26 July 2005 which reduces aid granted under Regulation (EEC) No 4028/86 for the project entitled: 'Modernisation of the aquaculture production unit in Rosolina (Veneto)'. The applicant relies on four pleas in support of its claims:

| 1. | By the first plea, it is submitted, as a preliminary issue, that, as regards the investigation of the alleged irregularities, the administrative action taken by the Commission to reduce the subsidy already granted for co-financing is time-barred. It is submitted in that connection that Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests was infringed. (1) |
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1.

By the first plea, it is submitted, as a preliminary issue, that, as regards the investigation of the alleged irregularities, the administrative action taken by the Commission to reduce the subsidy already granted for co-financing is time-barred. It is submitted in that connection that Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests was infringed. (1)

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| 2. | By its second plea the applicant alleges that the Commission breached its obligation to implement the ruling in the judgment of 5 March 2002, (2) in that, although it was entitled, in the new decision intended to replace the annulled decision of 11 July 2000, to review the whole matter, it had to do so within the limits and subject to the procedural requirements of the complaint of 23 November 1999 which is still open and has not been closed as a result of the annulment of the above decision. However, it was not entitled to submit further complaints not raised before that time.
  Moreover, the Commission, while recognising implicitly that most of the amount reduced in the previous, now annulled, decision reducing aid was in fact due, did not acknowledge that default interest was due on the amounts unlawfully withheld. |
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2.

By its second plea the applicant alleges that the Commission breached its obligation to implement the ruling in the judgment of 5 March 2002, (2) in that, although it was entitled, in the new decision intended to replace the annulled decision of 11 July 2000, to review the whole matter, it had to do so within the limits and subject to the procedural requirements of the complaint of 23 November 1999 which is still open and has not been closed as a result of the annulment of the above decision. However, it was not entitled to submit further complaints not raised before that time.

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Moreover, the Commission, while recognising implicitly that most of the amount reduced in the previous, now annulled, decision reducing aid was in fact due, did not acknowledge that default interest was due on the amounts unlawfully withheld.

| 3. | The third plea raises a complaint that Article 44(1) of the cited Regulation (EEC) No 4028/86 does not include the irregularity of which the applicant is accused in the contested decision among the conditions, listed exhaustively therein, for the reduction of aid: that is to say, the irregularity consisting in the fact that in the course of carrying out the work eligible for aid the contracting undertaking acquired a holding in the capital of the company awarded the contract. |
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3.

The third plea raises a complaint that Article 44(1) of the cited Regulation (EEC) No 4028/86 does not include the irregularity of which the applicant is accused in the contested decision among the conditions, listed exhaustively therein, for the reduction of aid: that is to say, the irregularity consisting in the fact that in the course of carrying out the work eligible for aid the contracting undertaking acquired a holding in the capital of the company awarded the contract.

| 4. | By its fourth plea, which alleges breach of the principles of equal treatment, proportionality and reasonableness, and the principle of free movement of capital, the applicant submits in the alternative that the criterion used by the Commission to calculate the contested reduction was arbitrary, in that it applied the same reduction indiscriminately to all the periods considered, without taking account of the fact that the percentage of the holding of the contracting undertaking in the company capital of the beneficiary changed gradually over time. |
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4.

By its fourth plea, which alleges breach of the principles of equal treatment, proportionality and reasonableness, and the principle of free movement of capital, the applicant submits in the alternative that the criterion used by the Commission to calculate the contested reduction was arbitrary, in that it applied the same reduction indiscriminately to all the periods considered, without taking account of the fact that the percentage of the holding of the contracting undertaking in the company capital of the beneficiary changed gradually over time.

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(1)  OJ 1995 L 312, 23.12.1995, p. 1.

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(2)  Case T-241/00 Azienda Agricola Le Canne v Commission [2002] ECR II-1251.

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Azienda Agricola Le Canne

Commission

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