Judgment — ECLI:EU:T:2006:239
Date: 2006-09-06
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Commission decision following the formal investigation procedure;Damage to competition and effect on trade
Procedure: Action for annulment - successful;Action for annulment - inadmissible;Application for measures of inquiry - unfounded
Origin: Italy

Notice for the OJ Action brought on 22 July 2004 by the Italian Republic against the Commission of the European Communities (Case T-304/04) Language of the case: Italian An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 July 2004 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato. The applicant claims that the Court should: 1. annul Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery; 2. annul any other connected or conditional measure which may exist and order the Commission of the European Communities to pay the costs. Pleas in law and main arguments: The Italian Republic has challenged before the Court of First Instance of the European Communities Commission Decision C(2004) 1812 final of 19 May 2004 declaring unlawful aid granted by Italy (under Law No 394 of 1981) in the form of interest relief to WAM SpA of EUR 103 313.20 from 24 April 1996 and EUR 106 366.60 from 9 November 2000 (State aid No C 4/2003/(ex NN 102/2002), with order for recovery. Law No 394 of 1981 supports, inter alia, Italian companies wishing to set up a subsidiary, representative offices, shops and warehouses. In support of its claim, the Italian Republic has pleaded: (A) Infringement of essential procedural requirements as regards the right of defence, the principle of transparency and the principle of the right to be heard, since the Commission has never sent Italy a copy of the complaint in the proceedings. (B) Infringement of essential procedural requirements as regards the right of defence and failure adequately to state reasons for lack of preliminary inquiries, since the Commission failed to carry out the necessary investigations into the complaint and the subsequent measures using the powers granted to it under procedural Regulation No 659/19991. (C) Error by the Commission in classifying the facts and infringement of Article 1(b) of Regulations No 69/2001 2 and 70/2001 3 since it classified the aid in question as 'export aid'. (D) Infringement of the principles of the protection of legitimate expectations and good faith, since the Commission contested the failure to communicate the aid, even though it was aware of Law No 394/81. On the contrary, the aim of the aid in question is not directly export-related, although its principal aim is internationalisation through the creation of fixed production bases abroad. (E) Infringement of Article 87 et seq of the EC Treaty and failure adequately to state reasons. It is claimed that in the contested decision the Commission never explains why and to what extent aid such as that in question, which is individual and for a very low amount, is capable of having an effect on trade between Member States. Nor does the defendant explain on what evidence it bases its claim of the risk of distortion of competition within the Community, above all with respect to aid which is very limited in amount. (F) Infringement of Article 4 of Regulation No 69/2001 and failure adequately to state reasons, since the Commission applied that provision retroactively to circumstances governed by the rules previously in force. (G) Failure adequately to state reasons, illogicality, infringement of the principle of fairness and wrongful application of Regulation No 69/2001 and Regulation No 70/2001, since the Commission adjusted the amount of the aid to be returned according to criteria which should be regarded as irrelevant and erroneous. ____________ 1 - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83 of 27.03.1999, p. 1) 2 - Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (OJ L 10, 13.01.2001, p. 30) 3 - Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ L 10, 13.01.2001, p. 30)