**Judgment of the Court (Sixth Chamber) of 21 December 2011 – A2A, formerly ASM Brescia v Commission**

**(Case C-318/09 P)**

Appeal – State aid – Aid granted to public utilities – Tax exemptions – Decision declaring the aid scheme incompatible with the common market – Action for annulment – Admissibility – Locus standi – Legal interest in bringing proceedings – Article 87 EC – Concept of ‘aid’ – Article 88 EC – Concept of ‘new aid’ – Article 10 EC – Duty to cooperate in good faith – Regulation (EC) No 659/1999 – Articles 1 and 14 – Lawfulness of a recovery order – Principle of legal certainty – Duty to state reasons

1.                     *Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision
prohibiting a sectoral aid scheme – Action brought by an undertaking having received individual aid granted under that scheme
and that must be recovered – Admissibility (Art. 230, fourth para., EC) (see paras 55-60)*

2.                     *Actions for annulment – Legal interest in bringing proceedings – Condition – Action capable of procuring an advantage for
the party bringing it – Commission decision on the recovery of State aid (see paras 68-70)*

3.                     *Appeals – Pleas in law – Inadequate statement of reasons – Reliance by the Court of First Instance on implied reasoning –
Whether permissible – Conditions (Art. 225 EC; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 97)*

4.                     *Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the
facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court
of Justice, Art. 58, first para.) (see paras 103-105)*

5.                     *Appeals – Pleas in law – Plea directed against a ground of the judgment not necessary in order to support the operative part
– Plea in law ineffective (see para. 109)*

6.                     *Appeals – Pleas in law – Distortion of national law relied on as evidence – Admissibility (Art. 225 EC; Statute of the Court
of Justice, Art. 51, first para.) (see para. 125)*

7.                     *Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissibility (Rules of Procedure
of the Court of Justice, Arts 42(2) and 118) (see para. 131)*

**Re:**

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| Appeal brought against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) of 11 June 2009 in Case T‐189/03 | ASM Brescia | v | Commission | by which that court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21). |

**Operative part**

The Court:

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| 1. | | Dismisses the main appeal and the cross-appeal; |

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| 2. | | Orders A2A SpA to pay the costs of the main appeal; |

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| 3. | | Orders the European Commission to pay the costs of the cross-appeal. |