# C_2007170EN.01003501.xml

| 21.7.2007 | EN | Official Journal of the European Union | C 170/35 |
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21.7.2007

EN

Official Journal of the European Union

C 170/35

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Action brought on 28 May 2007 — Fastweb v Commission

(Case T-188/07)

(2007/C 170/68)

Language of the case: Italian

Parties

Applicant: Fastweb SpA (represented by: M. Merloa, of its Legal Service, T. Ubalidi, lawyer)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 relating to State aid C52/2005 (ex NN 88/2005, ex CP 101/2004) in so far as it classifies as unlawful State aid which is incompatible with the common market measures which Italy implemented by providing subsidies for the purchase of digital decoders to terrestrial broadcasters offering pay-TV services and cable pay-TV operators (Article 1 of the decision); |
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annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 relating to State aid C52/2005 (ex NN 88/2005, ex CP 101/2004) in so far as it classifies as unlawful State aid which is incompatible with the common market measures which Italy implemented by providing subsidies for the purchase of digital decoders to terrestrial broadcasters offering pay-TV services and cable pay-TV operators (Article 1 of the decision);

| — | annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 in so far as it orders Italy to recover the aid declared incompatible from the beneficiaries and in particular from the applicant (Articles 2 and 3 of the decision); |
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annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 in so far as it orders Italy to recover the aid declared incompatible from the beneficiaries and in particular from the applicant (Articles 2 and 3 of the decision);

| — | 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 contested decision in the present case is the same as that in Case T-96/07 Telecom Italia Media v Commission
   (1).

Telecom Italia Media

Commission

1

The following grounds of annulment are submitted in support of the action:

| — | infringement of Article 87(1) of the EC Treaty, inadequate reasoning and failure to conduct a proper investigation concerning the classification of the measures as State aid. The applicant submits in particular that the measures in question do not constitute State aid in that they do not entail a transfer of State resources to the alleged beneficiaries and do not confer on them a selective advantage to the detriment of competitors. |
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infringement of Article 87(1) of the EC Treaty, inadequate reasoning and failure to conduct a proper investigation concerning the classification of the measures as State aid. The applicant submits in particular that the measures in question do not constitute State aid in that they do not entail a transfer of State resources to the alleged beneficiaries and do not confer on them a selective advantage to the detriment of competitors.

| — | Infringement of Article 87(1) of the EC Treaty, contradictory and inadequate reasoning with regard to the identification and existence of an economic advantage in favour of the alleged beneficiaries of the aid. The applicant states that the Commission's assessment of the identification of the form of aid, that is, the economic advantage which the alleged beneficiaries would have enjoyed, is inadequate and that the statement of reasons is manifestly contradictory. The decision is also vitiated in that if fails to demonstrate in what manner the subsidies granted to consumers to purchase decoders necessarily, automatically and indisputably conferred an economic advantage on the alleged beneficiaries of the measures. |
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Infringement of Article 87(1) of the EC Treaty, contradictory and inadequate reasoning with regard to the identification and existence of an economic advantage in favour of the alleged beneficiaries of the aid. The applicant states that the Commission's assessment of the identification of the form of aid, that is, the economic advantage which the alleged beneficiaries would have enjoyed, is inadequate and that the statement of reasons is manifestly contradictory. The decision is also vitiated in that if fails to demonstrate in what manner the subsidies granted to consumers to purchase decoders necessarily, automatically and indisputably conferred an economic advantage on the alleged beneficiaries of the measures.

| — | A failure to state adequate reasons with regard to the quantification of the aid to be recovered from the beneficiaries and unlawfulness of the order for recovery on the basis that it infringes the rules of the Treaty on State aid and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999. The applicant submits that the Commission's quantification of the advantage which would have been conferred on the alleged beneficiaries of the proposed measures is based on inadequate reasoning and goes beyond the powers conferred on the Commission by the EC Treaty and by the procedural regulation for State aid. |
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A failure to state adequate reasons with regard to the quantification of the aid to be recovered from the beneficiaries and unlawfulness of the order for recovery on the basis that it infringes the rules of the Treaty on State aid and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999. The applicant submits that the Commission's quantification of the advantage which would have been conferred on the alleged beneficiaries of the proposed measures is based on inadequate reasoning and goes beyond the powers conferred on the Commission by the EC Treaty and by the procedural regulation for State aid.

| — | Unlawfulness of the order for recovery in that it is absolutely and objectively impossible from the outset to implement it, a failure to state adequate reasons and infringement of Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 and of the principle of proportionality. |
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Unlawfulness of the order for recovery in that it is absolutely and objectively impossible from the outset to implement it, a failure to state adequate reasons and infringement of Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 and of the principle of proportionality.

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(1)  OJ L 117, 29.5.2007, p. 32.

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