# C_2016211EN.01006102.xml

| 13.6.2016 | EN | Official Journal of the European Union | C 211/61 |
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13.6.2016

EN

Official Journal of the European Union

C 211/61

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Action brought on 15 April 2016 — Centro Clinico e Diagnostico G.B. Morgagni v Commission

(Case T-172/16)

(2016/C 211/76)

Language of the case: Italian

Parties

Applicant: Centro Clinico e Diagnostico G.B. Morgagni SRL (Catania, Italy) (represented by: E. Castorina, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | Annul Commission Decision (EU) 2016/195 of 14 August 2015, C(2015) 5549 final, published in the Official Journal of the European Union of 18 February 2016, in so far as it provides (Article 4(5)) that ‘Italy shall cancel all outstanding payments of aid under all schemes referred to in Article 1 with effect from the date of adoption of this Decision’ and, in any case, in so far as it may prevent the applicant company obtaining the recovery of sums paid to the Agenzia delle Entrate dello Stato italiano in excess of the flat-rate of 10 % for its tax position (years 1990-1992), in accordance with Article 9(17) of Law No 289/2002; law which the courts rely upon in the Italian legal system. |
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Annul Commission Decision (EU) 2016/195 of 14 August 2015, C(2015) 5549 final, published in the Official Journal of the European Union of 18 February 2016, in so far as it provides (Article 4(5)) that ‘Italy shall cancel all outstanding payments of aid under all schemes referred to in Article 1 with effect from the date of adoption of this Decision’ and, in any case, in so far as it may prevent the applicant company obtaining the recovery of sums paid to the Agenzia delle Entrate dello Stato italiano in excess of the flat-rate of 10 % for its tax position (years 1990-1992), in accordance with Article 9(17) of Law No 289/2002; law which the courts rely upon in the Italian legal system.

Pleas in law and main arguments

In support of its action, the applicant relies on a single plea in law.

| — | In this regard, it claims that, when the European Commission states, as it does in the contested decision, that it is objectively impossible to recover (from the other companies that had to pay no more than 10 % of the sums owed) the state aid held to be illegal, it is a fact in law that — according to the principles set out above — the applicant’s right to recover the sums paid in excess of the provisions of Law No 289/2002 may not be denied: otherwise, there would be an intolerable, very serious difference in treatment between the applicant and the businesses of the province of Catania, now relieved by the contested decision from any payment up to 90 % of the amount of the unpaid tax. |
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In this regard, it claims that, when the European Commission states, as it does in the contested decision, that it is objectively impossible to recover (from the other companies that had to pay no more than 10 % of the sums owed) the state aid held to be illegal, it is a fact in law that — according to the principles set out above — the applicant’s right to recover the sums paid in excess of the provisions of Law No 289/2002 may not be denied: otherwise, there would be an intolerable, very serious difference in treatment between the applicant and the businesses of the province of Catania, now relieved by the contested decision from any payment up to 90 % of the amount of the unpaid tax.

Therefore, precisely as a result of the contested decision of the European Commission, an unfair competitive advantage has arisen for all the other companies, but to the detriment of the applicant, in respect of the damage sustained as a result of the natural disaster which occurred over 10 years before the decision of 14 August 2015. Under Italian law, businesses are not required to maintain administrative and accounting records for more than 10 years. Therefore, the Centro Morgagni is no longer in a position to provide evidence of having suffered damage for the purposes of Article 107 TFEU, with obvious infringement of the principles of equality, right of defence, protection of legitimate expectations (Article 20 of the Charter of Fundamental Rights of the European Union, Articles 2, 6, 9, 21 TEU) and distortion of competition in the conditions for equal treatment of operators.

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