# C_2011232EN.01003601.xml

| 6.8.2011 | EN | Official Journal of the European Union | C 232/36 |
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6.8.2011

EN

Official Journal of the European Union

C 232/36

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Action brought on 9 June 2011 — Portovesme v Commission

(Case T-291/11)

(2011/C 232/63)

Language of the case: Italian

Parties

Applicant: Portovesme Srl (Rome, Italy) (represented by: F. Ciulli, G. Dore, M. Liberati and A. Vinci, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| (1) | Pursuant to Article 267 TFEU, declare that the decision of the European Commission of 23 February 2011 relating to State aid No C 38/B/2004 (ex NN 58/2004) and No C 13/2006 (ex N 587/2005) implemented by Italy in favour of, inter alia, the applicant is unlawful and, accordingly, annul the decision in its entirety or in so far as is reasonable; |
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(1)

Pursuant to Article 267 TFEU, declare that the decision of the European Commission of 23 February 2011 relating to State aid No C 38/B/2004 (ex NN 58/2004) and No C 13/2006 (ex N 587/2005) implemented by Italy in favour of, inter alia, the applicant is unlawful and, accordingly, annul the decision in its entirety or in so far as is reasonable;

| (2) | in the alternative and only in the unlikely event that the form of order sought in paragraph 1 is not granted, declare that the decision in the provision ordering that the aid be recovered is unlawful on the basis that it is contrary to the general principle of the protection of legitimate expectations; |
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(2)

in the alternative and only in the unlikely event that the form of order sought in paragraph 1 is not granted, declare that the decision in the provision ordering that the aid be recovered is unlawful on the basis that it is contrary to the general principle of the protection of legitimate expectations;

| (3) | order the defendant to pay the costs and that the right be reserved to bring a separate action for damages. |
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(3)

order the defendant to pay the costs and that the right be reserved to bring a separate action for damages.

Pleas in law and main arguments

In support of the action, the applicant relies on 11 pleas in law.

| 1. | First plea in law, alleging infringement of the principle of legal certainty and the principle of the protection of legitimate expectations and infringement of Articles 4, 7, 10 and 14 of Regulation 659/1999. (1)

  Arguments in support of the plea: the decision was adopted almost six and a half years after the formal investigation procedure had been initiated. |
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1.

First plea in law, alleging infringement of the principle of legal certainty and the principle of the protection of legitimate expectations and infringement of Articles 4, 7, 10 and 14 of Regulation 659/1999. (1)

Arguments in support of the plea: the decision was adopted almost six and a half years after the formal investigation procedure had been initiated.

| 2. | Second plea in law, alleging an incorrect and/or incomplete account of the legal and regulatory reference framework and consequent breach of the duty of due diligence and impartiality.
  Arguments in support of the plea: the decision declaring the aid incompatible is based on an incorrect and incomplete account of the matters of fact and law and consequently infringes of the duty of due diligence and impartiality which should have informed the Commission’s conduct. |
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2.

Second plea in law, alleging an incorrect and/or incomplete account of the legal and regulatory reference framework and consequent breach of the duty of due diligence and impartiality.

Arguments in support of the plea: the decision declaring the aid incompatible is based on an incorrect and incomplete account of the matters of fact and law and consequently infringes of the duty of due diligence and impartiality which should have informed the Commission’s conduct.

| 3. | Third plea in law, alleging unequal treatment of Portovesme and Alcoa Trasformazioni, which was unreasonable.
  Arguments in support of the plea: in another decision relating to another company, the Commission found to be lawful the same scheme that is now declared incompatible with the common market as regards the applicant, thus giving rise to unreasonable unequal treatment as between the two companies. |
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3.

Third plea in law, alleging unequal treatment of Portovesme and Alcoa Trasformazioni, which was unreasonable.

Arguments in support of the plea: in another decision relating to another company, the Commission found to be lawful the same scheme that is now declared incompatible with the common market as regards the applicant, thus giving rise to unreasonable unequal treatment as between the two companies.

| 4. | Fourth plea in law, relating to the existence of aid for the purpose of Article 107(1) TFEU.
  Arguments in support of the plea: through the preferential tariff granted to the applicant, the Italian State intervened in order to eliminate an unjustified situation which placed certain parties at a disadvantage and to reduce the excessive costs relating to electricity consumption due to the poor connections between the islands network and the national mainland network. Consequently, the requirements that the measure should confer an economic advantage and be selective were not satisfied. Moreover, the intervention of the Cassa Conguaglio [Equalisation Fund for the Electricity Sector] was purely incidental and the measure in question cannot therefore be classified as constituting State resources. Lastly, that measure could not have had any effect on trade between Member States because, in the zinc market, there are no intra-Community trade flows. |
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4.

Fourth plea in law, relating to the existence of aid for the purpose of Article 107(1) TFEU.

Arguments in support of the plea: through the preferential tariff granted to the applicant, the Italian State intervened in order to eliminate an unjustified situation which placed certain parties at a disadvantage and to reduce the excessive costs relating to electricity consumption due to the poor connections between the islands network and the national mainland network. Consequently, the requirements that the measure should confer an economic advantage and be selective were not satisfied. Moreover, the intervention of the Cassa Conguaglio [Equalisation Fund for the Electricity Sector] was purely incidental and the measure in question cannot therefore be classified as constituting State resources. Lastly, that measure could not have had any effect on trade between Member States because, in the zinc market, there are no intra-Community trade flows.

| 5. | Fifth plea in law, alleging that the assumptions on which the contested decision was based are incorrect.
  Arguments in support of the plea: the decision is based on the incorrect assumption that the aid would have created an imbalance on the energy market, whereas the market affected by the scheme is the market for the production of heavy metals. |
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5.

Fifth plea in law, alleging that the assumptions on which the contested decision was based are incorrect.

Arguments in support of the plea: the decision is based on the incorrect assumption that the aid would have created an imbalance on the energy market, whereas the market affected by the scheme is the market for the production of heavy metals.

| 6. | Sixth plea in law, relating to the classification of the aid as new aid or existing aid.
  Arguments in support of the plea: the preferential tariff in question should have been classified as existing aid, already found to be compatible with the common market by an earlier Commission decision. |
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6.

Sixth plea in law, relating to the classification of the aid as new aid or existing aid.

Arguments in support of the plea: the preferential tariff in question should have been classified as existing aid, already found to be compatible with the common market by an earlier Commission decision.

| 7. | Seventh plea in law, relating to the compatibility of the aid with the common market.
  Arguments in support of the plea: the Commission failed to take account of the fact that the measure in question contributed to ensuring the development of sustainable employment in the area concerned. |
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7.

Seventh plea in law, relating to the compatibility of the aid with the common market.

Arguments in support of the plea: the Commission failed to take account of the fact that the measure in question contributed to ensuring the development of sustainable employment in the area concerned.

| 8. | Eighth plea in law, alleging infringement of Articles 2, 3, 5 and 12 TEC and misapplication of the principles of equality and proportionality in the actions of the Community institutions.
  Arguments in support of the plea: the contested decision unlawfully rejected an aid scheme designed to eliminate a situation which had given rise to serious discrimination between companies producing heavy metals in Italy, on the one hand, and in Europe on the other. |
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8.

Eighth plea in law, alleging infringement of Articles 2, 3, 5 and 12 TEC and misapplication of the principles of equality and proportionality in the actions of the Community institutions.

Arguments in support of the plea: the contested decision unlawfully rejected an aid scheme designed to eliminate a situation which had given rise to serious discrimination between companies producing heavy metals in Italy, on the one hand, and in Europe on the other.

| 9. | Ninth plea in law, alleging infringement of Article 174 TFEU and Annex D to Declaration No 30 on island regions.
  Arguments in support of the plea: the Commission failed to take account of the structural and market deficit arising as a result of the island regions. |
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9.

Ninth plea in law, alleging infringement of Article 174 TFEU and Annex D to Declaration No 30 on island regions.

Arguments in support of the plea: the Commission failed to take account of the structural and market deficit arising as a result of the island regions.

| 10. | Tenth plea in law, alleging infringement of the rules governing procedure (Article 107(3)(a), (b) and (c) TFEU) and misapplication of the 1998 Guidelines on national regional aid and misapplication of the 2007-2013 Guidelines.
  Arguments in support of the plea: the Commission failed to comply with its obligation to carry out a correct assessment as to the compatibility of the aid. |
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10.

Tenth plea in law, alleging infringement of the rules governing procedure (Article 107(3)(a), (b) and (c) TFEU) and misapplication of the 1998 Guidelines on national regional aid and misapplication of the 2007-2013 Guidelines.

Arguments in support of the plea: the Commission failed to comply with its obligation to carry out a correct assessment as to the compatibility of the aid.

| 11. | Eleventh plea in law, alleging infringement of the principle of the protection of legitimate expectations.
  Arguments in support of the plea: the Commission failed to take account both of the fact that the scheme from which the applicant benefited had already been declared compatible with the common market by an earlier decision and that no concerns were raised relation to that scheme for a period of 15 years following the decision at issue, factors which are therefore relevant with regard to the applicant’s legitimate expectations. |
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11.

Eleventh plea in law, alleging infringement of the principle of the protection of legitimate expectations.

Arguments in support of the plea: the Commission failed to take account both of the fact that the scheme from which the applicant benefited had already been declared compatible with the common market by an earlier decision and that no concerns were raised relation to that scheme for a period of 15 years following the decision at issue, factors which are therefore relevant with regard to the applicant’s legitimate expectations.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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