# C_2005082EN.01001601.xml

| 2.4.2005 | EN | Official Journal of the European Union | C 82/16 |
| --- | --- | --- | --- |

2.4.2005

EN

Official Journal of the European Union

C 82/16

---

Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities

(Case C-49/05 P)

(2005/C 82/34)

Language of the case: Italian

An appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) of 18 November 2004 in Case T-176/01 between Ferriere Nord, supported by the Italian Republic, and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 7 February 2005 by Ferriere Nord SpA, represented by W. Viscardini and G. Donà, avvocati.

The applicant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-276/01; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities in Case T-276/01;

| — | annul, through a declaration of inapplicability under Article 241 EC of point 82 of the ‘Community guidelines on State aid for environmental protection’ of 2001, Commission Decision 2001/829/EC, ECSC of 28 March 2001 (1), in which the aid of the autonomous Region of Friuli-Venezia Giulia in favour of Ferriere Nord SpA for environmental investment in a new production plant for electrowelded wire mesh was considered incompatible with the common market; |
| --- | --- |

—

annul, through a declaration of inapplicability under Article 241 EC of point 82 of the ‘Community guidelines on State aid for environmental protection’ of 2001, Commission Decision 2001/829/EC, ECSC of 28 March 2001 (1), in which the aid of the autonomous Region of Friuli-Venezia Giulia in favour of Ferriere Nord SpA for environmental investment in a new production plant for electrowelded wire mesh was considered incompatible with the common market;

1

| — | order, pursuant to Article 235 and the second paragraph of Article 288 EC, the Commission of the European Communities to pay compensation for harm suffered by Ferriere Nord SpA owing to the unlawfulness of the abovementioned decision and the delay with which the aid unlawfully denied will actually be granted to Ferriere Nord SpA, together with interest and an amount to take account of monetary revaluation; |
| --- | --- |

—

order, pursuant to Article 235 and the second paragraph of Article 288 EC, the Commission of the European Communities to pay compensation for harm suffered by Ferriere Nord SpA owing to the unlawfulness of the abovementioned decision and the delay with which the aid unlawfully denied will actually be granted to Ferriere Nord SpA, together with interest and an amount to take account of monetary revaluation;

| — | order the Commission to pay the applicant's costs and legal fees, both at first instance and in these proceedings. |
| --- | --- |

—

order the Commission to pay the applicant's costs and legal fees, both at first instance and in these proceedings.

Pleas in law and main arguments:

The applicant claims that the Court of First Instance erred in:

| — | its description of the legal basis of the notification of the contested aid and therefore did not consider that the initiation of the formal examination procedure of 3 June 1999 was unlawful; |
| --- | --- |

—

its description of the legal basis of the notification of the contested aid and therefore did not consider that the initiation of the formal examination procedure of 3 June 1999 was unlawful;

| — | considering that the procedural time limits for opening and closing the formal examination procedure had been observed; |
| --- | --- |

—

considering that the procedural time limits for opening and closing the formal examination procedure had been observed;

| — | finding that there had been no infringement of the rights of the ‘parties concerned’, even though those parties had not been able to submit observations in the light of the 2001 guidelines on State aid for environmental protection (which had come into force in the meantime and on which the Commission based its final measure in the formal examination procedure), while all the preparatory enquiries had been conducted on the basis of the ‘Community guidelines on State aid for environmental protection’ (2) of 1994; |
| --- | --- |

—

finding that there had been no infringement of the rights of the ‘parties concerned’, even though those parties had not been able to submit observations in the light of the 2001 guidelines on State aid for environmental protection (which had come into force in the meantime and on which the Commission based its final measure in the formal examination procedure), while all the preparatory enquiries had been conducted on the basis of the ‘Community guidelines on State aid for environmental protection’ (2) of 1994;

2

| — | finding that the Commission had not infringed the legitimate procedural expectations of Ferriere Nord, even though it had based its decision on certain documents which were not submitted by Ferriere Nord only because they had never been requested by the Commission itself; |
| --- | --- |

—

finding that the Commission had not infringed the legitimate procedural expectations of Ferriere Nord, even though it had based its decision on certain documents which were not submitted by Ferriere Nord only because they had never been requested by the Commission itself;

| — | holding that the aid granted to Ferriere Nord did not constitute a measure implementing a system already approved in 1992; |
| --- | --- |

—

holding that the aid granted to Ferriere Nord did not constitute a measure implementing a system already approved in 1992;

| — | interpreting point 82 of the 2001 guidelines cited above so as to give them unlawful retroactive application, instead of treating that point as void ab initio; |
| --- | --- |

—

interpreting point 82 of the 2001 guidelines cited above so as to give them unlawful retroactive application, instead of treating that point as void ab initio;

ab initio

| — | finding that the investment for which Ferriere Nord was granted aid had no environmental purpose; |
| --- | --- |

—

finding that the investment for which Ferriere Nord was granted aid had no environmental purpose;

| — | failing to apply the burden of proof which requires that the Commission, not the undertaking, isolate from the total cost of the investment the cost corresponding to environmental protection. |
| --- | --- |

—

failing to apply the burden of proof which requires that the Commission, not the undertaking, isolate from the total cost of the investment the cost corresponding to environmental protection.

---

(1)  OJ L 310 of 28.11.2001, p. 22.

1

(2)  OJ C 72 of 10.03.1994, p. 3.

2

---