# C_2011238EN.01003001.xml

| 13.8.2011 | EN | Official Journal of the European Union | C 238/30 |
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13.8.2011

EN

Official Journal of the European Union

C 238/30

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Action brought on 13 June 2011 — Eurallumina v Commission

(Case T-308/11)

2011/C 238/52

Language of the case: Italian

Parties

Parties

Applicant: Eurallumina SpA (Portoscuso, Italy) (represented by V. Leone, lawyer)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul in its entirety the contested decision as it relates to Eurallumina; or |
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annul in its entirety the contested decision as it relates to Eurallumina; or

in the alternative,

| — | annul Article 2 of the contested decision, in relation to the measure adopted pursuant to the decree of 2004 and, in consequence, Article 3 of the contested decision in so far as it orders recovery from Eurallumina; or |
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annul Article 2 of the contested decision, in relation to the measure adopted pursuant to the decree of 2004 and, in consequence, Article 3 of the contested decision in so far as it orders recovery from Eurallumina; or

| — | annul Article 3 of the contested decision, in so far as it orders recovery from Eurallumina; and |
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annul Article 3 of the contested decision, in so far as it orders recovery from Eurallumina; and

in any case

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

Pleas in law and main arguments

Pleas in law and main arguments

The application seeks annulment of the contested decision which:

| | classifies as new, unlawful, incompatible aid the measure contained in Article 1 of Decree of the President of the Council of Ministers No 14042 of 6 February 2004 (‘the decree of 2004’) and in the decisions adopted by the Autorità per l’Energia Elettrica e il Gas (‘the AEEG’) in order to give effect to that provision (together ‘the measure adopted pursuant to the decree of 2004’), ordering its recovery; |
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classifies as new, unlawful, incompatible aid the measure contained in Article 1 of Decree of the President of the Council of Ministers No 14042 of 6 February 2004 (‘the decree of 2004’) and in the decisions adopted by the Autorità per l’Energia Elettrica e il Gas (‘the AEEG’) in order to give effect to that provision (together ‘the measure adopted pursuant to the decree of 2004’), ordering its recovery;

| | classifies as new, incompatible aid the measure notified by Italy, contained in Article 11(12) of Law No 80 of 14 May 2005 converting into law Decree-Law No 35 of 14 March 2005 (‘Law No 80/2005’), and in the decision adopted by the AEEG for the application of that measure (together ‘the measure adopted pursuant to Law No 80/2005’). |
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classifies as new, incompatible aid the measure notified by Italy, contained in Article 11(12) of Law No 80 of 14 May 2005 converting into law Decree-Law No 35 of 14 March 2005 (‘Law No 80/2005’), and in the decision adopted by the AEEG for the application of that measure (together ‘the measure adopted pursuant to Law No 80/2005’).

In support of its action, the applicant puts forward five pleas in law.

| 1. | First plea in law, alleging breach of the general principle of proper administration
  The applicant maintains that the Commission erred in appraising together the two measures mentioned above, which called for separate appraisal having regard to their objective differences in respect of legal basis, addressees and the compensation mechanism provided. That led to an overlapping of the arguments used by the Commission, which made it harder for the applicant to defend itself. |
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1.

First plea in law, alleging breach of the general principle of proper administration

The applicant maintains that the Commission erred in appraising together the two measures mentioned above, which called for separate appraisal having regard to their objective differences in respect of legal basis, addressees and the compensation mechanism provided. That led to an overlapping of the arguments used by the Commission, which made it harder for the applicant to defend itself.

| 2. | Second plea, alleging infringement and misapplication of Article 107(1) TFEU as regards the definition of State aid
  The applicant maintains that the Commission erred in considering the two measures to be State aid, for neither case satisfies the requirements of advantage [that would not have been obtained] in ordinary market conditions, that threatens to distort competition, or of effect on trade between Member States. In particular: | as regards the measure adopted pursuant to the decree of 2004, this confers no advantage for it is merely a subjective extension of the measure earlier considered by the Commission not to be aid in the ‘Alumix’ (1) case, in which the Commission decided that the electricity tariff applied to Alumix did not constitute an advantage for the latter. Furthermore, the measure adopted pursuant to the decree of 2004 is incapable of affecting intra-Community trade — so far as Eurallumina is concerned — because the alumina market is in deficit in the EU and any reduction of its activities would not be offset by an increase in exports by operators in other Member States, which are already working at full capacity; |
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2.

Second plea, alleging infringement and misapplication of Article 107(1) TFEU as regards the definition of State aid

The applicant maintains that the Commission erred in considering the two measures to be State aid, for neither case satisfies the requirements of advantage [that would not have been obtained] in ordinary market conditions, that threatens to distort competition, or of effect on trade between Member States. In particular:

as regards the measure adopted pursuant to the decree of 2004, this confers no advantage for it is merely a subjective extension of the measure earlier considered by the Commission not to be aid in the ‘Alumix’ (1) case, in which the Commission decided that the electricity tariff applied to Alumix did not constitute an advantage for the latter. Furthermore, the measure adopted pursuant to the decree of 2004 is incapable of affecting intra-Community trade — so far as Eurallumina is concerned — because the alumina market is in deficit in the EU and any reduction of its activities would not be offset by an increase in exports by operators in other Member States, which are already working at full capacity;

1

| | as regards the measure adopted pursuant to Law No 80/2005, this confers no advantage in relation to ordinary market conditions for, given the anomalies of the power market in Italy and, above all, in Sardinia — where the price of electricity is kept artificially high because there is no interconnection with the continent — the reference to the price reached at European level on stock markets constitutes a valid reference in order to regard the tariff applied as a ‘market’ tariff, for the activities of the beneficiaries. The considerations valid with regard to the measure adopted pursuant to the decree of 2004 hold good with regard to intra-Community trade too. |
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as regards the measure adopted pursuant to Law No 80/2005, this confers no advantage in relation to ordinary market conditions for, given the anomalies of the power market in Italy and, above all, in Sardinia — where the price of electricity is kept artificially high because there is no interconnection with the continent — the reference to the price reached at European level on stock markets constitutes a valid reference in order to regard the tariff applied as a ‘market’ tariff, for the activities of the beneficiaries. The considerations valid with regard to the measure adopted pursuant to the decree of 2004 hold good with regard to intra-Community trade too.

| 3. | Third plea, alleging infringement and misapplication of Article 107(3) TFEU as regards the derogation for aid for regional purposes provided for in subparagraph (a)
  The applicant maintains that the Commission erred in finding the two measures not compatible as being aid for regional purposes. In particular, the following aspects: | there exists regional disadvantage, due to Sardinia’s not being interconnected with the continent, which renders disadvantageous the supplying of power to the beneficiaries, and due to the fact that the greatest consumers of power form the backbone of the island’s productive structure, to a large extent determining its levels of employment; |
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3.

Third plea, alleging infringement and misapplication of Article 107(3) TFEU as regards the derogation for aid for regional purposes provided for in subparagraph (a)

The applicant maintains that the Commission erred in finding the two measures not compatible as being aid for regional purposes. In particular, the following aspects:

there exists regional disadvantage, due to Sardinia’s not being interconnected with the continent, which renders disadvantageous the supplying of power to the beneficiaries, and due to the fact that the greatest consumers of power form the backbone of the island’s productive structure, to a large extent determining its levels of employment;

| | the proportionality and the appropriateness of the measures in question to make up for that disadvantage, as provisional measures designed to prevent the beneficiaries from moving away, pending the overcoming of the situation of structural disadvantage, by means of initiatives already begun and — now — brought to a conclusion by the Italian State, apt to create sufficient interconnection capacity for Sardinia and by means of specific efficiency investments that the beneficiaries have undertaken to continue; |
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the proportionality and the appropriateness of the measures in question to make up for that disadvantage, as provisional measures designed to prevent the beneficiaries from moving away, pending the overcoming of the situation of structural disadvantage, by means of initiatives already begun and — now — brought to a conclusion by the Italian State, apt to create sufficient interconnection capacity for Sardinia and by means of specific efficiency investments that the beneficiaries have undertaken to continue;

| | the two measures are temporary in nature and decreasing de facto. |
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the two measures are temporary in nature and decreasing de facto.

de facto

| 4. | Fourth plea, alleging breach of essential procedural requirements — want of reasoning
  The applicant maintains that the Commission failed to give sufficient reasons for its decision, in particular with regard to: | the difference between the measure adopted pursuant to the decree of 2004 and the measure at issue in the ‘Alumix’ decision; |
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4.

Fourth plea, alleging breach of essential procedural requirements — want of reasoning

The applicant maintains that the Commission failed to give sufficient reasons for its decision, in particular with regard to:

the difference between the measure adopted pursuant to the decree of 2004 and the measure at issue in the ‘Alumix’ decision;

| | the existence of the factor of possible distortion of competition and effect on trade between Member States; |
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the existence of the factor of possible distortion of competition and effect on trade between Member States;

| | the proportionality of the measure adopted pursuant to the decree of 2004. |
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the proportionality of the measure adopted pursuant to the decree of 2004.

| 5. | Fifth plea, alleging error of assessment in examining the circumstances that warrant legitimate expectations
  The applicant maintains that the Commission erred in determining that there were no circumstances to warrant legitimate expectations on Eurallumina’s part as to the non-aid character of the measure adopted pursuant to the decree of 2004. |
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5.

Fifth plea, alleging error of assessment in examining the circumstances that warrant legitimate expectations

The applicant maintains that the Commission erred in determining that there were no circumstances to warrant legitimate expectations on Eurallumina’s part as to the non-aid character of the measure adopted pursuant to the decree of 2004.

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(1)  Published in OJ C 288/4 of 1.10.1996, p. 4.

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