# C_2005296EN.01003301.xml

| 26.11.2005 | EN | Official Journal of the European Union | C 296/33 |
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26.11.2005

EN

Official Journal of the European Union

C 296/33

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Action brought on 21 September 2005 — Nuovo Agricast v Commission of the European Communities

(Case T-362/05)

(2005/C 296/69)

Language of the case: Italian

Parties

Applicant(s): Nuovo Agricast s.r.l. (Cerignola, Italy) (represented by Michele Arcangelo Calabrese)

Applicant(s):

Defendant(s): Commission of the European Communities

Defendant(s):

Form of order sought

The applicant claims, subject to all procedural reservations, that the Court should declare that, by having acted unlawfully as set out in the application, the Commission has seriously and manifestly infringed Community law, and has caused the applicant financial damage, and must therefore be ordered to pay to the applicant:

| (a) | compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the first part of the aid; |
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(a)

compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the first part of the aid;

| (b) | compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the second part of the aid; |
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(b)

compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the second part of the aid;

| (c) | compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the third part of the aid; |
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(c)

compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the third part of the aid;

| (d) | interest on those sums as revalued; |
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(d)

interest on those sums as revalued;

| (e) | EUR 1 453 387,03, or whatever greater or lesser sum may be determined — possibly in agreement with the Commission — during the proceedings, as compensation for the loss of income in the normal management of the undertaking in the financial year ending 30 June 2002 compared with the income it would have had if the investment programme had been completed; |
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(e)

EUR 1 453 387,03, or whatever greater or lesser sum may be determined — possibly in agreement with the Commission — during the proceedings, as compensation for the loss of income in the normal management of the undertaking in the financial year ending 30 June 2002 compared with the income it would have had if the investment programme had been completed;

| (f) | interest on the sum under (e) as revalued; |
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(f)

interest on the sum under (e) as revalued;

| (g) | the costs of the proceedings, including those of the party's technical consultancy. |
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(g)

the costs of the proceedings, including those of the party's technical consultancy.

Pleas in law and main arguments

The applicant in this case, as in Cases T-139/03 (1), T-151/03 (2) and T-98/04 (3), charges the Commission with having acted unlawfully in the preliminary investigation in respect of State aid N 715/99, the result of which was a decision to grant authorisation without objections. That authorisation extended, for the six-year period 2000-2006, the State aid scheme referred to by Law No 488/92, which had previously in 1997 been authorised until 31 December 1999.

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It is in this regard to be borne in mind that in accordance with the special administrative procedure for the obtaining of aid the Italian Government ought every six months to have issued invitations to tender, in which the undertakings concerned might have taken part. The financial resources used to fund the tender procedure would have been allocated to the undertakings in order of classification until exhausted. Having taken part in the third tender procedure, the applicant could not obtain aid because the resources intended for funding of its classification level had been exhausted.

The Italian Government, in proposing the investigation into aid No 715/99, asked the Commission to agree, in the first tender procedure under the new scheme, to the reformulation of applications submitted under the third and fourth notices to tender. The Commission, however, restricted its authorisation to the fourth invitation to tender.

In support of its claims, the applicant argues that the Commission:

| — | by having failed to initiate the formal investigation procedure when, once it had received the Italian Government's proposal for reformulation of the applications in respect of the third invitation to tender under the previous scheme, it considered that proposal incompatible with the common market, has infringed Article 88(2) of the Treaty and the principle of protection of the right to a fair hearing; |
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by having failed to initiate the formal investigation procedure when, once it had received the Italian Government's proposal for reformulation of the applications in respect of the third invitation to tender under the previous scheme, it considered that proposal incompatible with the common market, has infringed Article 88(2) of the Treaty and the principle of protection of the right to a fair hearing;

| — | has breached the principle of legal certainty; |
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has breached the principle of legal certainty;

| — | has committed an error of assessment. |
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has committed an error of assessment.

According to the applicant, by making the compatibility with the common market of the proposal to allow undertakings taking part in the third tender procedure to reformulate their tender and by concluding, without the least discussion with the parties concerned, that the proposal was incompatible, the Commission has altered its decision to approve the 1997 scheme, which presupposed a previous investigation under Article 87 of the Treaty.

Furthermore, the applicant alleges that, by affecting and putting an end to pre-existing legal situations, the defendant has in fact revoked the authorisation decision of 1997, without observing the procedural guarantees provided by Regulation EC No 659/99 for cases of revocation of aid.

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(1)  Order of the Court of First Instance of 8 June 2005, not published.

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(2)  Order of the Court of First Instance of 8 June 2005, not yet published in the ECR.

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(3)  Order of the Court of First Instance of 15 June 2005, not published.

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