# C_2009113EN.01002101.xml

| 16.5.2009 | EN | Official Journal of the European Union | C 113/21 |
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16.5.2009

EN

Official Journal of the European Union

C 113/21

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Appeal brought on 16 February 2009 by Hotel Cipriani SpA against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

(Case C-73/09 P)

2009/C 113/42

Language of the case: Italian

Parties

Parties

Appellant: Hotel Cipriani SpA (represented by: A. Bianchini, avvocato)

Appellant:

Other parties to the proceedings: Società Italiana per il gas SpA (Italgas), Italian Republic, Coopservice — Servizi di fiducia Soc. coop. rl, Comitato ‘Venezia vuole vivere’, Commission of the European Communities

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance; |
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set aside the judgment of the Court of First Instance;

| — | uphold the forms of order sought at first instance and, in consequence:






  — | annul the Commission decision (1) contested at first instance; |
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uphold the forms of order sought at first instance and, in consequence:

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annul the Commission decision (1) contested at first instance;

1

| — | in the lesser alternative, annul Article 5 of that decision in so far as the order for recovery provided for therein was interpreted by the Commission as covering also the aid granted on the basis of the de minimis principle and/or annul Article 5 in so far as it provides for interest to be paid at a rate which is higher than that actually paid by the appellant on its own debts; |
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in the lesser alternative, annul Article 5 of that decision in so far as the order for recovery provided for therein was interpreted by the Commission as covering also the aid granted on the basis of the de minimis principle and/or annul Article 5 in so far as it provides for interest to be paid at a rate which is higher than that actually paid by the appellant on its own debts;

de minimis

| — | order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice. |
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order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | By the first plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(1) EC, together with the statement of inadequate/contradictory grounds for the judgment under appeal. The laws and regulations found to be incompatible with Article 87 EC in no way distort or threaten to distort competition on the common market in hotel and catering (the very market on which Hotel Cipriani operates), the reasons being that (i) the city of Venice is such a special context that it does not affect the common market in any way, and (ii) the social security relief at issue was granted merely in order to offset the additional costs borne by the undertakings concerned on account of the difficulties inherent in operating on the relevant geographical market in accordance with the same conditions as the other areas of the European common market. The Court of First Instance failed to take proper account of those special circumstances, and simply concluded — without considering this issue in sufficient depth — that the advantages derived by the Venetian undertakings outweighed the disadvantages relating to their location: hence the claim that the grounds for the judgment under appeal are either inadequate or contradictory. |
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1.

By the first plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(1) EC, together with the statement of inadequate/contradictory grounds for the judgment under appeal. The laws and regulations found to be incompatible with Article 87 EC in no way distort or threaten to distort competition on the common market in hotel and catering (the very market on which Hotel Cipriani operates), the reasons being that (i) the city of Venice is such a special context that it does not affect the common market in any way, and (ii) the social security relief at issue was granted merely in order to offset the additional costs borne by the undertakings concerned on account of the difficulties inherent in operating on the relevant geographical market in accordance with the same conditions as the other areas of the European common market. The Court of First Instance failed to take proper account of those special circumstances, and simply concluded — without considering this issue in sufficient depth — that the advantages derived by the Venetian undertakings outweighed the disadvantages relating to their location: hence the claim that the grounds for the judgment under appeal are either inadequate or contradictory.

first plea in law

| 2. | By the second plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(c) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. First the Commission, and then the Court of First Instance, erred in concluding that the regional derogation provided for under Article 87(3)(c) EC did not apply: as is amply attested by the documents produced before the Court of First Instance, the relevant geographical market justified the social security relief granted under the Italian legislation, because it was designed solely to preserve the socio-economic fabric of the city of Venice, and not — as is also clear from the first plea in law — to bring about any anti-competitive distortion of trade on the common market. |
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2.

By the second plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(c) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. First the Commission, and then the Court of First Instance, erred in concluding that the regional derogation provided for under Article 87(3)(c) EC did not apply: as is amply attested by the documents produced before the Court of First Instance, the relevant geographical market justified the social security relief granted under the Italian legislation, because it was designed solely to preserve the socio-economic fabric of the city of Venice, and not — as is also clear from the first plea in law — to bring about any anti-competitive distortion of trade on the common market.

second plea in law

| 3. | By the third plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(d) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. In the case before the Court of First Instance, the social security relief had clearly been granted in order to facilitate the preservation of the undeniable cultural and artistic heritage of the city of Venice, which entails significant costs for the undertakings located in the lagoon areas, which undertakings located elsewhere do not have to bear. In rejecting those arguments — put forward, inter alia, by Hotel Cipriani — the judgment under appeal states, wrongly, that there was insufficient documentary evidence of the reasons for which, item by item, the costs linked to the preservation of the cultural and artistic heritage of Venice were borne by the applicant undertakings. That statement is wrong in a number of respects, and especially because ample documentation had been produced, even before the Commission, substantiating the fact that the entire historic city centre is, as such, subject to indiscriminate restrictions for the preservation of the buildings and architectural heritage. |
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3.

By the third plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(d) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. In the case before the Court of First Instance, the social security relief had clearly been granted in order to facilitate the preservation of the undeniable cultural and artistic heritage of the city of Venice, which entails significant costs for the undertakings located in the lagoon areas, which undertakings located elsewhere do not have to bear. In rejecting those arguments — put forward, inter alia, by Hotel Cipriani — the judgment under appeal states, wrongly, that there was insufficient documentary evidence of the reasons for which, item by item, the costs linked to the preservation of the cultural and artistic heritage of Venice were borne by the applicant undertakings. That statement is wrong in a number of respects, and especially because ample documentation had been produced, even before the Commission, substantiating the fact that the entire historic city centre is, as such, subject to indiscriminate restrictions for the preservation of the buildings and architectural heritage.

third plea in law

| 4. | By the fourth plea in law, Hotel Cipriani alleges that the provision made for the compulsory recovery of the amounts accounted for by the aid is unlawful, in that it is contrary to Article 14(1) of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC]. The rule laid down in that provision as regards recovery does not apply where, in the circumstances of the case, it would be contrary to a general principle of Community law; such principles were identified before the Court of First Instance, namely, the principles of proportionality, equal treatment and legal certainty. |
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4.

By the fourth plea in law, Hotel Cipriani alleges that the provision made for the compulsory recovery of the amounts accounted for by the aid is unlawful, in that it is contrary to Article 14(1) of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC]. The rule laid down in that provision as regards recovery does not apply where, in the circumstances of the case, it would be contrary to a general principle of Community law; such principles were identified before the Court of First Instance, namely, the principles of proportionality, equal treatment and legal certainty.

fourth plea in law

2

| 5. | By the fifth plea in law, Hotel Cipriani alleges infringement of Article 15 of Regulation No 659/99. In the case of the Commission’s decision of 25 November 1999, the 10-year limitation period specified in Article 15 of Regulation No 659/99 (which clearly applies ratione temporis to the present case) had already expired, with the result that, as regards the effects of the State aid at issue, reference must be made to Law No 171/1973, the ‘Special law for Venice’. |
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5.

By the fifth plea in law, Hotel Cipriani alleges infringement of Article 15 of Regulation No 659/99. In the case of the Commission’s decision of 25 November 1999, the 10-year limitation period specified in Article 15 of Regulation No 659/99 (which clearly applies ratione temporis to the present case) had already expired, with the result that, as regards the effects of the State aid at issue, reference must be made to Law No 171/1973, the ‘Special law for Venice’.

fifth plea in law

ratione temporis

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(1)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

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(2)  OJ 1999 L 83, p. 1.

2

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