# C_2011282EN.01001201.xml

| 24.9.2011 | EN | Official Journal of the European Union | C 282/12 |
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Appeal brought on 14 July 2011 by Power-One Italy SpA against the order of the General Court (Sixth Chamber) of 24 May 2011 in Case T-489/08 Power-One Italy SpA v European Commission

(Case C-372/11 P)

2011/C 282/23

Language of the case: Italian

Parties

Appellant: Power-One Italy SpA (represented by: A. Giussani and R. Giuffrida, avvocati)

Other party to the proceedings: European Commission

Form of order sought

| — | Set aside the order of the General Court (Sixth Chamber) of 24 May 2011 in Case T-489/09 and, accordingly:
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Declare that the European Commission acted in breach of Article 10(2) of Regulation 1655/2000,( 1 ) Article 14 of the SAP( 2 ) and the general legal principle of the protection of legitimate expectations; —
declare, in so far as the state of the proceedings so permits, that there is a causal link between the Commission’s conduct and the loss that has been sustained and continues to be sustained by Power-One Italy and, accordingly, order the European Union, on the basis of Article 268 TFEU (formerly Article 235 EC), to compensate Power-One Italy for all the loss sustained, assessed at EUR 2 876 188,99 or the cost incurred in respect of the PNEUMA project, as evidenced by the documents annexed to the appeal, which are in any event already in the Commission’s possession, and relied on in the proceedings; | — | Declare that the European Commission acted in breach of Article 10(2) of Regulation 1655/2000,( 1 ) Article 14 of the SAP( 2 ) and the general legal principle of the protection of legitimate expectations; | — | declare, in so far as the state of the proceedings so permits, that there is a causal link between the Commission’s conduct and the loss that has been sustained and continues to be sustained by Power-One Italy and, accordingly, order the European Union, on the basis of Article 268 TFEU (formerly Article 235 EC), to compensate Power-One Italy for all the loss sustained, assessed at EUR 2 876 188,99 or the cost incurred in respect of the PNEUMA project, as evidenced by the documents annexed to the appeal, which are in any event already in the Commission’s possession, and relied on in the proceedings; |
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| — | Declare that the European Commission acted in breach of Article 10(2) of Regulation 1655/2000,( 1 ) Article 14 of the SAP( 2 ) and the general legal principle of the protection of legitimate expectations; | | | | |
| — | declare, in so far as the state of the proceedings so permits, that there is a causal link between the Commission’s conduct and the loss that has been sustained and continues to be sustained by Power-One Italy and, accordingly, order the European Union, on the basis of Article 268 TFEU (formerly Article 235 EC), to compensate Power-One Italy for all the loss sustained, assessed at EUR 2 876 188,99 or the cost incurred in respect of the PNEUMA project, as evidenced by the documents annexed to the appeal, which are in any event already in the Commission’s possession, and relied on in the proceedings; | | | | |

| — | order the Commission to pay the costs. |
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Pleas in law and main arguments

In support of its appeal, Power-One Italy alleges, first, infringement of the general legal principle of the protection of legitimate expectations and that the statement of reasons was inadequate and contradictory, with reference to the claim alleging abuse of process.

The General Court stated, at paragraph 47 of the order under appeal, that the appellant could have derived a greater advantage from annulment of the Commission’s decision in respect of the sums reimbursed, corresponding to the recovery of the entire financial assistance provided for the project at issue and that ‘the payment of such a sum by way of compensation may be regarded as being closely connected to the annulment of the decision in question’, thus setting out its reasons in relation to the submissions alleging abuse of process. The General Court therefore arbitrarily split the appellant’s claim, separating the substantive unity of the acts which made up the conduct giving rise to the loss from the loss-causing event, represented by the overall expenses incurred. Adequate reasons were therefore not given for upholding the objection raised by the Commission.

The second ground on which the appeal is based alleges breach of the general legal principle of the protection of legitimate expectations, misapplication of the rules governing the burden of proof and obtaining evidence and inadequate and contradictory reasoning as regards the claims relating to residual damage.

Paragraph 55 of the General Court’s decision states that ‘the application does not set out the nature or scope of the residual damage which the applicant claims to have suffered’ and that ‘the application does not give any indication of the grounds on which the applicant claims that the residual damage is attributable to the withdrawal by the Commission of the financing for the project at issue’. It should be noted in that regard that the loss sustained by the appellant company can only be said to be self-evident, since the financing in question was intended to perform a specific function, which can be identified in the project undertaken, and the withdrawal of the financing could only give rise to costs being incurred which, in the absence of the funding, the appellant would not have afforded, Those arguments, previously set out in the observations relating to the plea of inadmissibility raised by the Commission (the appellant company’s balance sheet having been, moreover, annexed to those observations), were not considered by the General Court, which confined itself to challenging the alleged lack of particulars relating to the loss sustained.

Lastly, the appellant alleges breach of the general legal principle of the protection of legitimate expectations, misapplication of the rules governing the burden of proof and obtaining of evidence and failure to assess facts which would have had a bearing on the outcome of the case, by reference to the causal link.

At paragraph 57 of the order under appeal, in relation to the claims concerning the causal link, the General Court stated that the appellant company ‘does not provide any indication as to the effect of the conduct in question on the fact that the applicant bore the cost of project at issue in excess of the maximum amount committed by the Commission’. According to the appellant, it is clear that in the present case the General Court carried out a substantively inaccurate assessment of the facts on the file submitted in the proceedings. In essence, the General Court distorted the evidence put forward by denying the existence of a clear causal link between the Commission’s conduct and the loss sustained by the appellant. Thus, in stating the grounds for its decision, the General Court failed to consider circumstances already relied on in the application at first instance or the observations subsequently submitted. It is clear from the appellant’s submissions in particular that the alleged failure on the part of the Commission is of an ancillary, not an essential nature, and consists in a delay in supplementing the documentation in relation to a project that is fully completed.

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( 1 )  Regulation of the European Parliament and of the Council of 17 July 2000 concerning the Financial Instrument for the Environment (LIFE) (OJ 2000 L 192, p. 1).

( 2 )  Standard Administrative Provisions annexed to the Grant Agreement.

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