# C_2005257EN.01001402.xml

| 15.10.2005 | EN | Official Journal of the European Union | C 257/14 |
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15.10.2005

EN

Official Journal of the European Union

C 257/14

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Action brought on 3 August 2005 — ACEA Electrabel Produzione SpA/Commission of the European Communities

(Case T-303/95)

(2005/C 257/28)

Language of the case: Italian

Parties:

Applicant: ACEA Electrabel Produzione SpA (Rome, Italy) [represented by: Luca G. Radicati di Brozolo, Massimo Merola, Chiara Bazoli, Fabrizion D'Alessandri, lawyers]

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission's decision of 16 March 2005 on aid for the reduction of greenhouse gases through the use of sources of alternative energy (State aid No C 35/03), in that it classifies as State aid measures to fund the construction of a distance heating system in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings; |
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annul the Commission's decision of 16 March 2005 on aid for the reduction of greenhouse gases through the use of sources of alternative energy (State aid No C 35/03), in that it classifies as State aid measures to fund the construction of a distance heating system in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings;

| — | 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 applicant in this case is a company controlled by Electrabel SA and ACEA. More precisely, it was one of three operating companies controlled by the hodling company ACEA Electrabel Holding SpA, a joint venture company created by Electrabel and ACEA in order to operate in the field of gas and electric energy.

The action concerns the decision of 16 March 2005 by which the Commission concluded the proceedings brought under Article 88(2) EC for the purpose of examining the compatibility with Community law of the funding granted by the Regione Lazion for the extension of a distance heating system in the district of Torrino-Mezzocammino, near Rome (State aid No C-35/03 — ex NN 90/2002).

The applicant requests the Court of First Instance of the European Communities to declare the decision null in so far as it classifies as State aid measures to fund the construction of a distance heating network in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings (‘the Tax Relief Decision’).

The action is based in particular on the following main grounds:

| (a) | the measure in question does not constitute State aid, inasmuch as it is not capable of affecting competition, and does not on any view cause any damage to intra-Community trade. In point of fact, it exhausts its effects at local level, being intended to subsidise a project (the construction of a heating system in a quarter near Rome) that is to benefit a limited number of users in a restricted area of Italian territory, in fact, merely an overspill area for a large town; |
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(a)

the measure in question does not constitute State aid, inasmuch as it is not capable of affecting competition, and does not on any view cause any damage to intra-Community trade. In point of fact, it exhausts its effects at local level, being intended to subsidise a project (the construction of a heating system in a quarter near Rome) that is to benefit a limited number of users in a restricted area of Italian territory, in fact, merely an overspill area for a large town;

| (b) | the recipient (i.e. the applicant) of that measure is not the same as the beneficiary of the aid that is the subject-matter of the Tax Relief Decision (i.e. ACEA), nor does it constitute a single economic entity with the latter, so that the order for suspension of the grant of aid appears quite unjustified; |
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(b)

the recipient (i.e. the applicant) of that measure is not the same as the beneficiary of the aid that is the subject-matter of the Tax Relief Decision (i.e. ACEA), nor does it constitute a single economic entity with the latter, so that the order for suspension of the grant of aid appears quite unjustified;

| (c) | even leaving aside the error in the identification of the recipient and even if ACEA were, quod non, to be considered to be the actual recipient of the aid in question, application of the judgment in Deggendorf
   (1) would seem to be without bearing on the circumstances of this case. Specifically, the Commission has not demonstrated that there are any grounds (in particular, the cumulative effect of the previous measures together with the new measures) which, according to the principles to be drawn from that judgment, must be present if grant of the measure/aid? is to be suspended. |
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(c)

even leaving aside the error in the identification of the recipient and even if ACEA were, quod non, to be considered to be the actual recipient of the aid in question, application of the judgment in Deggendorf
   (1) would seem to be without bearing on the circumstances of this case. Specifically, the Commission has not demonstrated that there are any grounds (in particular, the cumulative effect of the previous measures together with the new measures) which, according to the principles to be drawn from that judgment, must be present if grant of the measure/aid? is to be suspended.

quod non

Deggendorf

1

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(1)  Judgment in Joined Cases T-244/93 and T-486/93 TWD v Commission [1995] ECR II-2265, upheld by judgment of the Court of Justice in Case C-355/95 [1997] ECR I-2549.

1

TWD

Commission

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