62009TJ0088_EN
Parties
Grounds
Operative part
Parties
In Case T‑88/09,
Idromacchine Srl,
established in Porto Marghera (Italy),
Alessandro Capuzzo, residing in Mirano (Italy),
Roberto Capuzzo, residing in Mogliano Veneto (Italy),
represented by W. Viscardini and G. Donà, lawyers,
applicants,
v
European Commission,
represented by D. Grespan and E. Righini, acting as Agents, and by F. Ruggeri Laderchi, lawyer,
defendant,
ACTION for damages allegedly suffered on account of the publication in the Official Journal of the European Union of false information adversely affecting, inter alia, the image and reputation of Idromacchine in Commission Decision C(2002) 5426 final of 30 December 2004, ‘State aid – Italy – State Aid N 586/2003, N 587/2003, N 589/2003 and C 48/2004 (ex N 595/2003) – Extension of the 3-year delivery limit for a chemical tanker – Invitation to submit comments pursuant to Article 88(2) [EC]’,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 8 February 2011,
gives the following
Judgment
Grounds
Background
1. Idromacchine Srl is a naval construction company operating, in particular, in the steam generators sector. Alessandro Capuzzo and Roberto Capuzzo each hold 50% of the company capital of Idromacchine and are the Chairman of its Board of Directors and Managing Director respectively. Idromacchine and Alessandro and Roberto Capuzzo, taken together, are hereinafter referred to as ‘the applicants’.
2. In 2002, Cantiere Navale de Poli SpA (‘de Poli’) ordered from Idromacchine four large tanks designed to carry liquid gas on board vessels C.188 and C.189, which were being built by de Poli.
3. The building of vessels C.188 and C.189 was assisted by operating aid, as governed by Council Regulation (EC) No 1540/98 of 29 June 1998 establishing new rules on aid to shipbuilding (OJ 1998 L 202, p. 1). Under Article 3(1) and (2) of that regulation, operating aid granted to shipbuilding was authorised subject to certain conditions, in particular, that it was not to be granted in respect of ships delivered more than three years from the date of signing of the final shipbuilding contract. However, under Article 3(2) of the regulation, the Commission of the European Communities was permitted to grant an extension of the delivery limit when it was found justified by the technical complexity of the individual shipbuilding project concerned or by delays resulting from unexpected disruptions of a substantial and defensible nature in the working programme of a yard due to exceptional circumstances, unforeseeable and external to the company. Any such extension could be granted by the Commission only if the Member State in question notified it, in accordance with Article 2 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 [EC] (OJ 1999 L 83, p. 1), of its request for an extension.
4. On 11 December 2003, the Italian Republic notified the Commission of a request for an extension of the delivery limit initially stipulated for the delivery of certain vessels, including C.188 and C.189, which de Poli was building, in accordance with Article 3(2) of Regulation No 1540/98.
5. Between 5 February and 18 October 2004, the Commission asked the Italian authorities on a number of occasions for additional information in relation to their request for an extension of the delivery limit initially agreed for the delivery of the vessels. The Italian authorities answered the Commission’s requests timeously.
6. On 30 December 2004, the Commission notified the Italian Republic of its Decision C(2002) 5426 final of 30 December 2004, State aid – Italy – State aid N 586/2003, N 587/2003, N 589/2003 & C 48/2004 (ex N 595/2003) – Extension of the 3-year delivery limit for a chemical Tanker – Invitation to submit comments pursuant to Article 88(2) [EC]’ (‘the contested decision’).
7. In the contested decision, the Commission first granted, on completion of the preliminary notified aid investigation phase, an extension of the delivery limit for vessels built by de Poli, after finding that the conditions laid down in Article 3(2) of Regulation No 1540/98 had been satisfied and, second, decided to initiate the formal procedure provided for by Article 88(2) EC, in relation to the request for an extension of the delivery limit for a chemical tanker built by another shipyard.
8. In so far as concerns the Commission’s examination of the request for an extension of the delivery limit for the vessels built by de Poli, the Commission stated, in paragraph 10(iii) of the contested decision, as follows:
‘As regards vessels C.196 and C.197, the yard had commissioned from Idromacchine ... one of the principal manufacturers of reservoirs, the construction of load tanks for vessels C.188 and C.189, sister vessels of vessels C.196
et C.197 . During the construction of vessels C.188 and C.189, the RINA (Italian naval registry), the Italian certification authority, declared that the tanks being built at Idromacchine and destined for those vessels, were not satisfactory given the presence of certain defects.
… The tanks originally destined for vessels C.188 and C.189, and which had to be reordered from a different constructor, were thus installed on vessels C.196 and C.197, resulting in a delay in delivery of six months in total, given a delivery date of 31.12.2003.
Load tanks are indispensible components if vessels are to be authorised to transport liquid gas; [the Italian authorities] point out that the tanks used on vessels C.188 [and] C.189
– and on their sister vessels C.196 and C.197
– must meet strict quality and security naval standards. Moreover, the Italian authorities state that, given Idromacchine’s experience, the shipyard could not have foreseen that the RINA would express a negative opinion on the reservoirs for vessels C.188 and C.189 . The Italian authorities also state that, faced with that difficulty, the shipyard immediately began looking for other suppliers on the market. The company [G] was the only supplier available to manufacture new tanks which, it appears, could be delivered only on 31.1.2004 and 31.3.2004, compelling the shipyard to request an extension of the delivery deadline.
…’
9. In paragraph 28, third subparagraph, of the contested decision, the Commission states that, ‘as regards the tanks, it is important to point out that the inability of the firm Idromacchine, the manufacturer of the tanks, to build tanks (an essential component of the vessels) in accordance with the prescribed certification standards and the ensuing impossibility of delivering the tanks within the agreed period of time, is quite exceptional’.
10. The Commission stated, in paragraph 29, third subparagraph, of the contested decision that, ‘as regards the tanks, it must be observed that the problems caused by Idromacchine’s inability to deliver the tanks, which are a necessary component for a vessel’s use for commercial purposes in accordance with the authorised conditions of operation, were also unforeseeable’.
11. Paragraph 31 of the contested decision reads as follows:
‘The manufacturer was unable to deliver the tanks in accordance with the contractual terms and the shipyard had to order those components from another supplier, further delaying the completion of vessels C.196 and C.197 ... The failure to meet the delivery date for the necessary supplies was outside the will of [de Poli, which] had no means of intervening ...’.
12. Furthermore, table 1 to the contested decision states in particular that ‘the unsuitability of the defective tanks for the sister vessels C.188 and C.189, at a late stage of their construction, compelled the shipyard to install the tanks intended for vessels C.196
et C.197 in them’.
13. Lastly, the final paragraph of the contested decision, as it was notified to the Italian Republic on 30 December 2004, states as follows:
‘If this letter contains confidential information that should not be disclosed, you are invited to inform the Commission thereof within [15] working days of the date of receipt of the present letter. Should the Commission receive no reasoned request to this effect within that period, it will conclude that you agree to the publication of the full text of the letter, in the official language of the case, at the following Internet site:’
14. The Italian authorities sent no request to the Commission not to disclose any information contained in the contested decision on the ground that it was confidential.
15. The contested decision was published in the Official Journal of the European Union
on 18 February 2005 (OJ 2005 C 42, p. 15).
Procedure and forms of order sought
16. By application lodged at the Registry of the Court of First Instance on 27 February 2009, the applicants brought the present action for damages.
17. On 11 March 2009, the President of the Second Chamber rejected an application for anonymity and data confidentiality made by the applicants. On 2 April 2009, at the applicants’ request, the Court confirmed its rejection of the initial application for anonymity and data confidentiality.
18. Owing to a change in the composition of the chambers of the Court, the Judge‑Rapporteur was assigned to the Fourth Chamber, to which, in consequence, the present case was assigned.
19. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 8 February 2011.
20. The applicants claim that the General Court should:
– order the Commission to pay, in respect of material damage, compensation in the sum of EUR 5 459 641.28 or such other sum as the Court may determine, reevaluated from the date of publication of the contested decision to the date of delivery of judgment, together with default interest from the date of delivery of the judgment until full payment of the sum, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points;
– order the Commission to pay to Idromacchine and Alessandro and Roberto Capuzzo, in respect of their non-material damages, such compensation as the Court shall deem fair and equitable, in the sum, for example, of a significant percentage, in the order of 30% to 50%, of the compensation awarded in respect of material damages, reevaluated from the date of publication of the contested decision to the date of delivery of judgment, together with default interest from the date of delivery of the judgment until full payment of the sum, at the rate set by the ECB for main refinancing operations, increased by two percentage points;
– order the Commission to restore the image of Idromacchine and of Alessandro and Roberto Capuzzo by such means as the Court shall consider most appropriate, such as an ad hoc publication in the Official Journal or a letter addressed to the principle customers in the sector correcting the information concerning Idromacchine given in the contested decision;
– order the Commission to pay the costs.
21. The Commission contends that the Court should:
– dismiss the application;
– order the applicants to pay the costs.
Law
22. Pursuant to the second paragraph of Article 288 EC, ‘[i]n the case of non-contractual liability, the European Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
23. According to settled case-law, in order for the Community to incur non-contractual liability, in accordance with the second paragraph of Article 288 EC, for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the conduct of the institution in question must be unlawful, actual damage must have been suffered, and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei
v EEC
[1982] ECR 3057, paragraph 16, and Case T-383/00 Beamglow
v Parliament and Others
[2005] ECR II-5459, paragraph 95).
24. First of all, as regards the condition relating to the unlawfulness of the alleged conduct of the institution or body concerned, case-law requires that there must be established a sufficiently serious breach of a rule of law intended to confer rights on individuals (Case C-352/98 P Bergaderm and Goupil
v Commission
[2000] ECR I-5291, paragraph 42). In relation to the requirement that there must be a sufficiently serious breach, the decisive criterion for establishing that a breach of Community law is sufficiently serious is whether the Community institution or body concerned manifestly and gravely disregarded the limits on its discretion. Where that institution or body has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C-132/00 P Commission
v Camar and Tico
[2002] ECR I-11355, paragraph 54, and Joined Cases T-198/95, T‑171/96, T-230/97, T -174/98 and T-225/99 Comafrica and Dole Fresh Fruit Europe
v Commission
[2001] ECR II-1975, paragraph 134).
25. Next, as regards the condition requiring actual damage to have been suffered, the Commission will incur liability only if the applicant has actually suffered ‘real and certain’ loss (Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others
v Council and Commissio n [2002] ECR 85, paragraph 9; Case 51/81 De Franceschi
v Council and Commission, [1982] ECR 117, paragraph 9; and Case T‑108/9 Candiotte
v Council
[1996] ECR II‑87, paragraph 54). It is for the applicant to produce to the Court the evidence to establish the fact and the extent of such loss (Case 26/74 Roquette frères
v Commission
[1976] ECR 677, paragraphs 22 to 24, and Case T‑575/93 Koelman
v Commission
[1996] ECR II‑1, paragraph 97).
26. Lastly, as regards the condition that there be a causal link between the alleged conduct and the injury pleaded, the alleged harm must be a sufficiently direct consequence of the conduct complained of, which must be the determinant cause of the harm, whereas there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation (Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier and Others
v Council
[1979] ECR 3091, paragraph 21, and Case T-279/03 Galileo International Technology and Others
v Commission
[2006] ECR II-1291, paragraph 130 and the case-law cited). It is for the applicant to adduce evidence of the causal nexus between the conduct complained of and the injury pleaded (Case T‑149/96 Coldiretti and Others v Council and Commission
[1998], ECR II‑3841, paragraph 101 and the case-law cited).
27. If any one of those three conditions for the engagement of non-contractual liability on the part of the Community is not satisfied, the claims for compensation will have to be dismissed, without there being any need to consider whether the other two conditions are satisfied (Case T-170/00 Förde-Reederei
v Council and Commission
[2002] ECR II-515, paragraph 37; see, to that effect, Case C-146/91 KYDEP
v Council and Commission
[1994] ECR I-4199, paragraph 81). Furthermore, the Community Courts are not obliged to examine those requirements in any particular order (Case C-257/9 P Lucaccioni
v Commission
[1999] ECR I-5251, paragraph 13).
28. In the present case, the applicants maintain that they have suffered non-material damage and material damage, in respect of which they seek compensation. The Court regards it as appropriate first to examine the claim for compensation of their non-material damage, and then to examine their claim for compensation of their material damage.
1. The claim for compensation of non-material damage
29. According to the applicants, Idromacchine and Alessandro and Roberto Capuzzo have all suffered non-material damage that should be compensated.
The non-material damage suffered by Idromacchine
30. In so far as concerns the alleged non-material damage suffered by Idromacchine, the Court must examine the conditions under which the Community may incur liability, addressing, first, the question whether the conduct alleged against the Commission was unlawful, next, the question whether actual harm has been suffered, and, finally, the question of the causal link between the alleged conduct and the injury pleaded. Only if all of those conditions are satisfied must the Court then consider the extent of any compensation to be granted to Idromacchine under this head.
The alleged unlawful conduct of the Commission
31. In their written submissions, the applicants allege, in substance, two courses of unlawful conduct against the Commission.
32. As regards the first type of unlawful conduct complained of, the applicants state that the Commission contravened the principles of sound administration, of due diligence and respect for the rights of the defence in accordance with which the Commission ought, before adopting the contested decision, to have afforded Idromacchine the opportunity of submitting its observations, so that Idromacchine could then have established that it was not responsible in any way for the delay in the delivery of the tanks in question.
33. First, it must be borne in mind that, according to case-law, the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in light of its Community obligations, for granting the aid (see Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano
v Commission [2002] ECR I‑7869, paragraph 81 and the case-law cited).
34. Moreover, in the procedure for reviewing State aid, interested parties other than the Member State concerned cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to the Member State ( Falck and Acciaierie di Bolzano
v Commission, cited in paragraph 33 above, paragraph 82 and the case-law cited).
35. Finally, in the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 88(2) EC. It is only in connection with the latter, which is designed to enable the Commission to be fully informed of all the facts of the case, that the EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (Case C-78/03 P Commission
v Aktionsgemeinschaft Recht und Eigentum
[2005] ECR I-10737, paragraph 34 and the case-law cited).
36. It is thus clear from the case-law summarised in paragraphs 33 to 35 above that the Commission, which, in the contested decision, granted an extension of time for the construction of vessels built by de Poli, was in no way required, during the preliminary stage of the procedure for reviewing the aid in question, to consult Idromacchine. Moreover, Idromacchine was not a third party having an interest in the procedure, since it was neither the beneficiary of, nor a competitor of the beneficiary of the aid in question.
37. The arguments raised by the applicants in this regard do not undermine that finding.
38. First, the argument that, in substance, the Commission would have reached a different conclusion from that which it adopted in the contested decision, had it consulted Idromacchine before adopting the decision, must be rejected as irrelevant. That argument does not, on any basis, call into question the conclusion expressed in paragraph 36 above, that, at the stage of the preliminary investigation into the aid, the Commission was under no obligation to consult Idromacchine.
39. Second, the argument that the facts of the case must lead the Court to find that there has been a breach of the rights of the defence, as it did in similar circumstances in the matter leading to the judgment of 24 September 2008 in Case T‑412/05 M v European Ombudsman
(not published in the ECR, paragraphs 133 and 136), must be dismissed as unfounded. In that judgment, the Court held that the European Ombudsman had breached the principle that both parties must be heard by identifying by name a civil servant in one of his decisions dealing with a case of maladministration, without first consulting the individual, as he was required to do under the legal provisions by which he was bound. By contrast with the facts of that case, the Commission was under no obligation in the present case to consult Idromacchine before adopting the contested decision.
40. Therefore, the applicants’ argument that the Commission contravened the principle of sound administration as well as the principles of due diligence and respect for the rights of the defence which flow from it, by failing to consult Idromacchine before adopting the contested decision, must be dismissed as unfounded.
41. As regards the second course of unlawful conduct in which the Commission is alleged to have engaged, the applicants argue, first, breach of the duty of professional secrecy in that the Commission ought to have refrained from imputing blameworthy conduct to Idromacchine in the contested decision. Second, they allege breach of the principle of proportionality in that there was no need to mention Idromacchine by name in the contested decision. They maintain that, even if it were to be held that Idromacchine were responsible for the delays in the delivery of the vessels built by de Poli, or had failed to deliver tanks conforming to current standards, the fact remains that the Commission was wrong to disclose the name of Idromacchine in the contested decision published in the Official Journal, since there was no need for such disclosure in this case.
42. In this connection, it must be borne in mind that Article 287 EC provides that the members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information of the kind covered by professional secrecy, in particular information about undertakings, their business relations or their cost components.
43. Regulation No 659/1999 reiterates the Commission’s duty to maintain professional secrecy when investigating State aid. Recital 21 of that regulation states, in fine, that ‘the Commission, when giving public information on its decisions, should respect the rules on professional secrecy, in accordance with Article [287 EC]’. Article 24 of the regulation provides that ‘the Commission and the Member States, their officials and other servants, including independent experts appointed by the Commission, shall not disclose information which they have acquired through the application of this Regulation and which is covered by the obligation of professional secrecy’.
44. Neither Article 287 EC nor Regulation No 659/1999 expressly indicates what information, apart from business secrets, is covered by the obligation of professional secrecy.
45. According to the case-law, the information covered by professional secrecy may be both confidential information and business secrets (Case T‑353/94 Postbank
v Commission
[1996] ECR II‑921, paragraph 86). As regards, generally, the nature of business secrets or other information covered by the obligation of professional secrecy, it is necessary, first of all, that such business secrets or confidential information be known only to a limited number of persons. Next, it must be information whose disclosure is liable to cause serious harm to the person who has provided it or to third parties. Finally, the interests liable to be harmed by disclosure must, objectively, be worthy of protection. The assessment of the confidentiality of an item of information requires, in this connection, that the individual legitimate interests opposing disclosure of the information be weighed against the public interest in ensuring that the activities of the Community institutions take place as openly as possible (Case T‑198/03 Bank Austria Creditanstalt
v Commission
[2006] ECR II‑1429, paragraph 71, and Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse
v Commission
[2007] ECR II‑4225, paragraph 65 and the case-law cited).
46. It is thus appropriate to examine, in light of the legal provisions and case-law set out in paragraphs 42 to 45 above, whether, as the applicants maintain, the Commission infringed its duty of professional secrecy and the principle of proportionality by stating in the contested decision that Idromacchine, which it named, had failed to deliver tanks conforming to current standards and had failed to fulfil its contractual obligations.
47. It must be observed, first, that the information that Idromacchine had in essence been unable to deliver tanks conforming to current standards and within the contractual terms was conveyed by the Italian Republic to the Commission for the sole purposes of the administrative procedure for investigating the aid in question. Furthermore, that information, as the applicants in substance point out, and rightly so, concerned business relations between the two companies. The tenor of the information is, therefore, confidential in this case.
48. Second, the disclosure of the information referred to in paragraph 46 above was likely to cause serious harm to Idromacchine. Irrespective of whether the Commission erred in its assessment of the facts when forming the view that Idromacchine had not properly acquitted itself of its contractual obligations toward de Poli, it must be held that the Commission’s disclosure of facts and opinions which presented Idromacchine in the contested decision in an unfavourable light was, in any event, likely to cause the company serious harm.
49. Third, since disclosure of the information referred to in paragraph 46 above was likely to cause harm to Idromacchine’s image and reputation, that company’s interest in the information being withheld was objectively worthy of protection.
50. Fourth, it appears, on balancing Idromacchine’s legitimate interest in not having its name disclosed in the contested decision against the public interest, that the disclosure was disproportionate in light of the purpose of the contested decision.
51. It must be observed, first, that the principle of openness and the requirement for transparency in the acts of the institutions, as enshrined by Article 1 EU and Articles 254 and 255 EC, required the Commission in this case, in the context of its investigation of the State aid granted to de Poli, clearly to express in the contested decision its view on the issue of whether the delay in the construction of the vessels in question was due to the conduct of third parties rather than to de Poli. Nevertheless, it would have been sufficient for the Commission to mention the contractual breaches, either in very general terms, of the supplier of an important component of the vessels or, more precisely, if necessary, of the supplier of the tanks in question. It was not necessary in either case to mention the supplier’s name, so that the legitimate interests of the supplier could be safeguarded.
52. Next, the arguments which the Commission puts forward in order to demonstrate that it made no error in disclosing the name of Idromacchine in the contested decision cannot succeed.
53. First, the Commission’s submission, in response to questions put to it by the Court at the hearing, that it had been ‘appropriate, from the point of view of the statement of reasons for the [contested] decision’, to give the name of the manufacturer of the tanks in question, which was ‘particularly reliable [, but], for once, had been the cause of a delay’, must be rejected as unfounded. In the investigation of the aid in question, which led to the adoption of the contested decision, the only relevant question was whether the Italian Republic had given sufficient legal justification for the delays on de Poli’s part in delivering the vessels in question. The disclosure of the identity of the supplier or suppliers that might have made mistakes and caused those delays had no bearing on the Commission’s findings in the contested decision.
54. Second, in so far as the Commission maintains that not mentioning by name the supplier of the tanks in question in the contested decision would not have prevented the public from learning its identity since the economic sector in question is very small and is made up of specialists and since litigation was pending between de Poli and Idromacchine before the courts of Venice (Italy), of which the press had spoken, that argument must also be rejected as unfounded. Those circumstances do not call into question the conclusion that, by identifying Idromacchine as responsible for the delays in delivery, the Commission disclosed, in the contested decision, facts and opinions which presented Idromacchine, by name, as having been unable to supply de Poli with products that met current standards or to fulfil its contractual obligations, even though the disclosure of that information was not necessary, having regard to the purpose of the contested decision.
55. Lastly, the Court must dismiss as unfounded the Commission’s arguments that it had merely decided that the contested decision could rest upon the information which the Italian Republic had provided it with and that Articles 24 and 25 of Regulation No 656/1999 and paragraph 25 et seq. of the Commission’s communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions (OJ 2003 C 297, p. 6) made it clear that it was for the Italian Republic to indicate the information which it regarded as covered by professional secrecy. Whilst those provisions state, in substance, that the Commission is to notify its decision to the Member State concerned, which will then normally have 15 days to raise the issue of the confidentiality of information which it considers to be covered by the obligation of professional secrecy, they do not absolve the Commission of its duty, under Article 287 EC, not to disclose professional secrets; nor do they prevent the Commission from deciding, of its own initiative, not to disclose information which it regards as being covered by the obligation of professional secrecy, even where it receives no request to that end from the Member State concerned. Furthermore, even if the Italian Republic had made the error of conveying false information to the Commission and had failed to inform it of the confidential nature of information relating to the conduct of commercial relations between Idromacchine and de Poli, any such error would not call into question the conclusion that the Commission could, in any event, have decided of its own initiative not to disclose information covered by the duty of professional secrecy.
56. Accordingly, the disclosure in the contested decision of facts and opinions which presented Idromacchine, by name, as having been unable to supply de Poli with products that met current standards or to fulfil its contractual obligations constitutes a breach of the obligation of professional secrecy provided for by Article 287 EC. Given that the purpose of that obligation is to protect the rights conferred on individuals, and given that the Commission does not enjoy a broad discretion in deciding whether it should, in any given case, depart from the rule of confidentiality, it must be held that that breach of Community law is sufficient to establish the existence of a sufficiently serious infringement, within the meaning of the case-law set out in paragraph 24 above.
57. In light of all the foregoing considerations, the Court must hold that, by breaching its duty of professional secrecy, the Commission acted unlawfully in such a way as to engage its non-contractual liability, in accordance with the second paragraph of Article 288 EC.
58. That being so, there is no need for the Court to examine the applicant’s last complaint that the Commission also infringed the principle of proportionality by disclosing in the contested decision facts and opinions which presented Idromacchine, by name, as having been unable to supply de Poli with products that met current standards or to fulfil its contractual obligations. Indeed, even if it were held that the principle of proportionality had been breached, that would not in any event enable the applicants to obtain in this case, in respect of the damage which they allege to arise from the harm they plead, any greater compensation in kind or amount than that which they may hope to obtain by reason of the Commission’s breach of its duty of professional secrecy. There is therefore, no need to rule on that complaint.
Actual harm
59. The applicants argue, in substance, that Idromacchine suffered non-material damage in connection with the harm done to its image and reputation by its having been presented, by name, in the contested decision as having been unable to supply to de Poli products conforming to current standards or to fulfil its contractual obligations.
60. It must be held in this connection that, as is clear from the extracts from the contested decision reproduced in paragraphs 8 to 12 above, the Commission presented Idromacchine, by name, as having been unable to manufacture tanks that met certification standards (see paragraph 10(iii), paragraph 28, third subparagraph, and paragraph 29, third subparagraph of the contested decision) and as having been unable to supply to de Poli the tanks in question, in accordance with its contractual obligations (see paragraph 31 of the contested decision), with the result that de Poli had had to call upon another undertaking for the supply. That information, which presented Idromacchine unfavourably, as an undertaking incapable of providing services conforming to current standards and thus of fulfilling its contractual obligations, was likely to tarnish its image and its reputation, which, in themselves, are of commercial value, a point which the Commission has not disputed in its written submissions.
61. It is, moreover, important to clarify that, like the Court’s finding, in paragraph 150 of its judgment in M v European Ombudsman, cited in paragraph 39 above, that it was clear that the publication, even on the Ombudsman’s website, of his decision associating the applicant in that case, which he named, with a case of maladministration had affected that applicant in a real and certain way, the mere publication in the Official Journal of the information concerning Idromacchine, by name, in the contested decision is sufficient to establish the real and certain nature of the damage which Idromacchine has suffered.
62. Furthermore, even if, as the Commission argued at the hearing, it should be regarded as having made no error in its assessment in the contested decision that Idromacchine had not properly acquitted itself of its contractual obligations toward de Poli, the case remains that facts and opinions presenting Idromacchine, by name, as having been unable to provide de Poli with products conforming to current standards or to fulfil its contractual obligations harmed Idromacchine’s image and reputation. Moreover, that harm was specific to Idromacchine and distinct from any harm that might have arisen from errors of assessment that the Commission or the Italian Republic might have made in regarding Idromacchine as responsible for the delays in delivery of the tanks in question
63. It must, therefore, be held that harm was done to Idromacchine’s image and reputation.
The causal nexus between the alleged conduct and the harm pleaded
64. The applicants maintain, in substance, that there is a direct causal nexus between the breaches of the duty of professional secrecy and the principle of proportionality, on the one hand, and the harm done to Idromacchine’s image and reputation, on the other.
65. The Court must hold, in this connection, that Idromacchine would have suffered no harm to its image and reputation if the Commission had not disclosed in the contested decision facts and opinions presenting Idromacchine, by name, as having been unable to provide de Poli with products conforming to current standards or to fulfil its contractual obligations. The Commission’s arguments that there is no sufficient direct causal nexus between its alleged failings and the harm pleaded by the applicants cannot succeed.
66. First, in so far as the Commission argues that the harm suffered by the applicants is attributable to de Poli, which maintained during the State aid procedure that the delays in the construction of the vessels were due in particular to Idromacchine’s conduct, or to the Italian Republic, which conveyed false information to the Commission, those arguments must be dismissed as unfounded.
67. Even if it were to be supposed that de Poli had provided false information concerning Idromacchine to the Italian Republic, which then conveyed that information, wrongly, to the Commission, and had also failed to inform the Commission that that information ought to be protected by professional secrecy, the fact nevertheless remains that the direct cause of the harm sustained by Idromacchine in this regard resulted not from any allegedly false information provided by de Poli or the Italian Republic, but from the Commission’s disclosure in the contested decision of facts and opinions presenting Idromacchine, by name, as having been unable to provide de Poli with products conforming to current standards or to fulfil its contractual obligations when there was in fact no need to do so, having regard to the purpose of the contested decision.
68. Second, contrary to the submission which the Commission made at the hearing after the applicants had stated in reply to the Court’s oral questions that the Court of Venice had handed down a judgment in December 2009 finding that de Poli had not made any errors in the performance of its contractual obligations towards Idromacchine, that judgment would, in any event, have no bearing upon the finding that Idromacchine would not have sustained harm to its image and reputation had the Commission not disclosed its name in the contested decision.
69. In light of all the considerations set out in paragraphs 31 to 68 above, the Court must hold that the three conditions for engaging the non-contractual liability of the Commission, for the purposes of the second paragraph of Article 288 EC, have been satisfied, and it must therefore determine what amount of damages should be awarded to Idromacchine to compensate the non-material damage which it has suffered.
The compensation of the non-material damage suffered by Idromacchine
70. As regards compensation for the damage to Idromacchine’s image and reputation, the applicants seek, in substance, first, such sum as the Court deems fair and equitable, second, compensatory interest from the date of publication of the contested decision to the delivery of the judgment and default interest from the date of delivery of the judgment until full payment of the sum due and, lastly, measures to restore the image and reputation of Idromacchine.
71. First, as regards the applicant’s request for the Commission to pay such sum as the Court deems fair and reasonable, it is appropriate to point out that, in response to the oral questions put to them by the Court at the hearing, the applicants stated that, since non-material damage could not be quantified, it was only by way of illustration that they suggested that the Court should award them compensation in a sum of between 30% and 50% of the amount which they claim by way of material damages, that is to say, a sum of between EUR 1 637 892 and EUR 2 729 820.
72. To begin with, as regards the factors which the applicants regard as having aggravated the harm done to them, inasmuch as the Commission ‘reiterated the adverse publicity concerning Idromacchine’, the applicants mention the references to the contested decision which appear in Commission Decision 2006/948/EC of 4 July 2006 on State aid which Italy is planning to implement for Cantieri Navali Termoli SpA (OJ 2006 L 383, p. 53), then in Decision 2008/C 208/07 of 16 April 2008 ‘State aid C 15/08 (ex N 318/07, N 319/07, N 544/07 and N 70/08) – Extension of three-year delivery limit for 4 chemical tankers produced by Cantiere Navale de Poli’ (OJ 2008 C 208, p. 14) and lastly in the Court’s judgment of 12 November 2008 in Case T‑70/07 Cantieri Navali Termoli
v Commission, not published in the ECR (OJ 2009 C 6, p. 25).
73. While it is true that, in the two decisions and the judgment mentioned in paragraph 72 above, which were published in the Official Journal, reference was made to the contested decision, it must nevertheless be observed that no new mention was made of the facts and opinions presenting Idromacchine, by name, as having been unable to provide de Poli with products conforming to current standards or to fulfil its contractual obligations. That being so, the two decisions and the judgment are not likely such as to have aggravated Idromacchine’s non-material damage.
74. Second, it must be pointed out that the applicants have offered no explanation to support their application for the award of compensation of between 30% and 50% of the sum of EUR 5 459 641.28, which they seek as compensation for their material damage. Whilst the disclosure by a public authority such as the Commission of information presenting Idromacchine in an unfavourable light would be likely to cause actual harm to the image and reputation of that company, the applicants nevertheless fail to put forward any argument or evidence explaining the reasons for which the amounts which they mention represent fair compensation for the harm done to Idromacchine’s reputation. It might be observed in this connection in particular that, first, it is not alleged that those amounts bear any relation to the cost of investments made by Idromacchine in order to create and maintain its image and reputation. Second, the applicants have put forward no argument or evidence that such sums, which are between 12 and 20 times higher than the EUR 133 500 which Idromacchine claims as average annual profits achieved during the years preceding the publication of the contested decision, would represent fair compensation for the damage suffered by Idromacchine.
75. Third, it must be observed that the applicants were in any event quite capable of significantly limiting the non-material harm suffered by Idromacchine. Given that the applicants state that, as early as 5 October 2004, the Italian certification authority issued Idromacchine with a type approval certificate for the tanks in question, establishing that the tanks were in conformity with current standards, it must be assumed that Idromacchine could have used that certificate, in particular with its existing and potential customers, in order to dispute, even before the contested decision was published, the truth of the adverse opinions concerning it which were stated in the contested decision and could thereby have limited the resulting harm to its image and reputation. For that reason, it is also appropriate to dismiss as unfounded the arguments which the applicants put forward in response to the Court’s questions at the hearing, to the effect that the harm to Idromacchine’s image and reputation was all the more damaging since, after its publication, the contested decision became the first search result concerning Idromacchine produced by an Internet search engine and since the decision was available both on the webpage for the Commission’s Directorate-General for Competition and in the Official Journal, both of which are widely read.
76. In light of all the considerations set out in paragraphs 71 to 75 above, and in the absence of any more precise information from the applicants regarding the extent of the harm done to Idromacchine’s image and reputation, the Court takes the view that the sum of EUR 20 000 represents fair compensation.
77. Second, as regards the applicants’ claims for compensatory interest from the date of publication of the contested decision to delivery of the judgment and default interest from the date of delivery of the judgment until actual payment of the compensation due, it must be borne in mind, first, that, since the conditions for engaging the Commission’s non-contractual liability have been met, the adverse consequences of a lapse of time between the occurrence of the actionable event and the date of payment of compensation cannot be disregarded, inasmuch as the effects of inflation must be taken into account (Case T‑260/97 Camar
v Council and Commission
[2005] ECR II‑2741, paragraph138; see also, to that effect, Case C‑308/87 Grifoni
v EEAC
[1994] ECR I‑341, paragraph 40). It must be borne in mind that those inflationary effects are reflected in the annual inflation rate for the period in question, as established by Eurostat (the statistical office of the European Union), in the Member State where the company is established (see, to that effect, Joined Cases C‑104/89 and C‑37/90 Mulder and Others
v Council and Commission [2000] ECR I‑203, paragraphs 220 and 221; Camar
v Council and Commission, paragraph 139; and judgment of 26 November 2008 in Case T‑285/03 Agraz and Others
v Commission
(not published in the ECR, paragraph 50). In this connection, it must be noted, in this case, that the actionable event took place on the date of the contested decision’s publication in the Official Journal, that is to say, 18 February 2005.
78. That being so, it must be held that the Commission must pay compensatory interest from the date of publication of the contested decision, 18 February 2005, until delivery of the present judgment, at the rate fixed by the ECB for main refinancing operations, applicable during the period in question, increased by two percentage points.
79. Second, according to the case-law of the Court of Justice, the amount of compensation payable may be accompanied by default interest from the date of delivery of the judgment declaring a party liable to make good the damage claimed (see, to that effect, Dumortier and Others
v Council, cited in paragraph 26 above, paragraph 25; Mulder and Others
v Council and Commission, cited in paragraph 77 above, paragraph 35; and Agraz and Others
v Commission, cited in paragraph 77 above, paragraph 55). In accordance with case-law, the interest rate to be applied is calculated on the basis of the rate set by the ECB for main refinancing operations, applicable during the period in question, increased by two percentage points ( Camar
v Council and Commission, paragraph 77, paragraph 146, and Agraz and Others
v Commission, paragraph 77, paragraph 55).
80. That being so, the Court holds that the Commission must pay default interest from the date of delivery of the present judgment until full payment of the compensation, at the rate set by the ECB for main refinancing operations, applicable during the period in question, increased by two percentage points.
81. Third, as regards the applicants’ requests for the repair of Idromacchine’s image, it must be borne in mind that, according to case-law, it follows from the second subparagraph of Article 288 and Article 235 EC, which do not preclude the grant of compensation in kind, that the Courts of the European Union have the power to impose on the Community any form of reparation that accords with the general principles of non-contractual liability common to the laws of the Member States, including, if it accords with those principles, compensation in kind, if necessary in the form of an injunction to do or not to do something ( Galileo International Technology and Others
v Commission, cited in paragraph 26 above, paragraph 63).
82. In the present case, the applicants’ request for the Court to repair Idromacchine’s image, either by publishing in the Official Journal a corrigendum rectifying the allegedly false information appearing in the contested decision or by addressing a letter to customers in the ship building sector correcting the allegedly false information appearing in the contested decision, must be rejected as unfounded. It is true that the applicants assert on a number of occasions in their written pleadings, essentially, that Idromacchine did not make errors in the performance of its contractual obligations towards de Poli. Nevertheless, it must be recalled that the finding made against the Commission in paragraph 56 above, in accordance with the applicants’ application, was that it disclosed the name of Idromacchine, not that it erred in its assessment of the facts by concluding in the contested decision, in substance, that Idromacchine had failed properly to perform its contractual obligations toward de Poli. In the absence of any application to that effect from the applicants, a finding of such an error of assessment on the Commission’s part does not fall within the scope of the present action. There is therefore no need to consider whether the Commission made such an error or, a fortiori, to order the Commission to adopt measures to repair Idromacchine’s image and reputation.
83. The applicants’ request for measures to repair Idromacchine’s image and reputation must therefore be rejected as unfounded.
84. In conclusion, as regards the applicants’ claim for compensation of Idromacchine’s non-material damage, first, it must be held that the conditions for engaging the Community’s non-contractual liability have been met, second, Idromacchine must be awarded the sum of EUR 20 000 in compensation of its non-material damage, third the Commission must be ordered to pay compensatory interest on that amount, from the date of publication of the contested decision in the Official Journal, 18 February 2005, until delivery of the present judgment, at the rate set by the ECB for main refinancing operations, applicable during the period in question, increased by two percentage points, and fourth, the Commission must be ordered to pay default interest on that sum from the date of delivery of the present judgment until full payment of the compensation, at the rate set by the ECB for main refinancing operations, applicable during the period in question, increased by two percentage points.
The non-material damage suffered by Alessandro and Roberto Capuzzo
85. It is clear from the applicants’ written submissions that they argue, in substance, that Alessandro and Roberto Capuzzo have suffered two types of non-material damage. First, the applicants maintain that the harm done to Idromacchine’s image and reputation affected Alessandro and Roberto Capuzzo ‘consequentially’, as the owners of the entire share capital of Idromacchine and as directors of the company. Second, the applicants submit that they have suffered a ‘state of anxiety resulting from the absolute necessity of repairing the damage caused by the Commission as a result of the publication of information which [they] regarded and continue to regard as untruthful’ and also that they suffered ‘uncertainty’ and ‘frustration’ as a result of the fruitless attempts they made following the publication of the contested decision to repair the damage sustained by Idromacchine.
86. Given that it has already been held, in paragraph 57 above, that the Commission acted unlawfully in that it breached its duty of professional secrecy, the Court must examine whether the applicants have established in this case that Alessandro and Roberto Capuzzo have suffered real and certain non-material damage and whether there is a causal link between the unlawful conduct and their alleged non-material damage. In accordance with the case-law cited in paragraph 27 above, if one or other of these conditions is not satisfied, the liability of the Community will not be engaged.
87. First of all, as regards the damage to the image and reputation of Alessandro and Roberto Capuzzo, allegedly suffered ‘consequentially’ upon the damage to its image and reputation suffered by Idromacchine, the Court must observe, as did the Commission, that their names appear nowhere in the contested decision and that no allegation of wrongful conduct is made against them personally in the decision.
88. Next, it must be pointed out that the mere fact that Alessandro and Roberto Capuzzo hold the entire share capital of Idromacchine and that they are the principal directors of the company does not alter the finding that it was only the conduct of Idromacchine, not that of its shareholders or directors, that was called into question by the Commission in the contested decision. The Court would emphasise in this connection that, as the extrac ts from the contested decision reproduced in paragraphs 8 to 12 above clearly show, it was the ability of the company to fulfil its contractual obligations and to supply products conforming to current standards, not the abilities of Alessandro and Roberto Capuzzo as directors or shareholders, that was questioned in the contested decision.
89. Lastly, as regards the applicants’ reliance on the judgment in Case T‑231/97 New Europe Consulting and Brown
v Commission
[1999] ECR II‑2403, paragraphs 54 and 55, the Court would point out that the facts of that case were different from those of the present case and cannot give rise to the same conclusion. Whilst it is clear from paragraphs 54 and 55 of the judgment in question that the Court held in that case that the harm done to the reputation of the company in question had affected the reputation of its manager, who owned 99% of it, that was due to the circumstances of the case in which, first, the manager initially operated the company alone, as an ‘individual undertaking’, and second, he had personally been placed in a position of uncertainty by the Commission, which had forced him to make fruitless attempts to change the situation brought about by the Commission itself. In the present case, the applicants have furnished no evidence that either of those circumstances was present.
90. It must therefore be held that the applicants have failed to establish that actual harm was done to the image and reputation of Alessandro and Roberto Capuzzo, as shareholders and directors of Idromacchine.
91. Second, as regards the non-material damage sustained by Alessandro and Roberto Capuzzo consequent upon their state of ‘anxiety’ resulting from the necessity to restore Idromacchine’s image and their state of ‘uncertainty’ and ‘frustration’ as a result of the fruitless attempts they made following publication of the contested decision to repair the damage sustained by Idromacchine, it must be held, first, that the applicants have merely stated that they have suffered psychological damage without, however, furnishing any evidence thereof.
92. Next, and in any event, the documents provided to the Court by the applicants in this case do not indicate that Alessandro and Roberto Capuzzo went any further in the administrative steps which they personally took as directors of Idromacchine than sending two signed letters to the Italian Ministry of Foreign Affairs and to the Commission. Those steps alone cannot be regarded as likely to cause any greater unpleasantness than is the normal consequence of conducting business for directors such as Alessandro and Roberto Capuzzo, such as might constitute non-material damage.
93. Thus, the applicants have failed to establish that Alessandro and Roberto Capuzzo suffered a state of ‘anxiety’, ‘uncertainty’ and ‘frustration’ such as to constitute real and certain damage.
94. In light of all the considerations set out in paragraphs 84 to 93 above, the Court must reject the applicant’s claim for compensation for the non-material damage which Alessandro and Roberto Capuzzo allege they have suffered. That being so, it must also dismiss as unfounded their application, under their second and third heads of claims, to award them compensatory and default interest in this regard or to order the Commission to ‘repair’ their image and reputation.
2. The claim for compensation of material damage
95. The applicants maintain that they have sustained four types of material damage.
96. First, the applicants seek compensation for the damage which they allegedly suffered as a result of Idromacchine’s having to submit to the Italian Republic and to the Commission formal requests for access to the documents which Italy and the Commission had exchanged in the course of the State aid review procedure which led to the adoption of the contested decision. In this connection, they claim compensation in the sum of EUR 3 569.28 representing legal expenses and the travel costs incurred by an Idromacchine employee in order to obtain access to documents held by the Italian authorities and also EUR 9 072 representing the cost of a technical and accounting expert’s report on the damage that Idromacchine allegedly suffered, which they commissioned from an audit company for the purposes of the present procedure (‘the expert’s report’).
97. It must be borne in mind in this regard that, under Article 91(2) of the rules of Procedure of the General Court, expenses necessarily incurred by the parties for the purpose of the proceedings are recoverable costs.
98. Therefore, as regards, first, the cost of the expert’s report which the applicants incurred in order to establish the quantum of damages which they claim in the present procedure before the Court, it must be held that, in accordance with settled case-law, such costs incurred by the parties for the purpose of judicial proceedings cannot be regarded as constituting damage distinct from the burden of costs (see, to that effect, Case C‑334/97 Commission
v Montorio
[1999] ECR I‑3387, paragraph 54, and order in Case T‑140/04 Ehcon
v Commission
ECR II‑3287, paragraph 79).
99. Thus, the applicants are not entitled, under Article 288(2) EC, to compensation for the cost of the expert’s report which they commissioned for the purposes of these proceedings.
100. Second, as regards the legal expenses and the travel costs of an Idromacchine employee in connection with the requests for access to the letters exchanged between the Italian Republic and the Commission, which the applicants incurred before these judicial proceedings commenced, it must be recalled that the General Court has ruled that, even though, as a rule, substantial legal work is carried out in the course of the proceedings preceding the judicial phase, Article 91 of the Rules of Procedure referred only to proceedings before the General Court, to the exclusion of any prior stage. That followed in particular from Article 90 of the Rules of Procedure, which refers to ‘proceedings before the General Court’ (see, to that effect, order in Case T‑38/95 Groupe Origny
v Commission ECR II‑217, paragraph 29 and the case-law cited). Therefore, to regard such costs as a loss for which compensation may be awarded in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable (see the order in Ehcon
v Commission, cited in paragraph 98 above, paragraph 79).
101. It must therefore also be held that the applicants are not entitled, under Article 288(2) EC, to compensation for legal expenses and the travel costs of an Idromacchine employee which they incurred in the stage preceding the present proceedings before the Court.
102. In light of the considerations set out in paragraphs 95 to 101 above, the Court must therefore dismiss the requests for compensation of the costs incurred by the applicants both prior to the present proceedings and for the purposes of the present proceedings.
103. Second, since the Court has already held, in paragraph 57 above, that the Commission has acted unlawfully in such a way as to engage the Community’s non-contractual liability, it must now examine whether the applicants have proved that they suffered actual loss under each of their three other claims of material damage and whether there is a causal nexus between each of those losses and the unlawful conduct. In accordance with the case-law mentioned in paragraph 27 above, if either of those conditions is not satisfied, the non-contractual liability of the Community cannot be engaged.
104. First, the applicants claim compensation of EUR 3 900 000 representing the construction value of the tanks in question. Idromacchine had not, the applicants say, been able to sell the tanks because of the references to their supposed defects appearing in the contested decision, as was stated, in substance, in the letter from a broker dated 30 March 2007 which the applicants have annexed to their application (‘the broker’s letter’)
105. In this connection it must first be observed that, in their written submissions, the applicants maintain that, since the tanks remained unsold after the publication of the contested decision, ‘Idromacchine went as far as to begin building, in collaboration with other companies in the sector and some shipbuilders, an ad hoc vessel (the physical and mechanical characteristics of which [were] comparable to those of the de Poli vessels in which the tanks ordered were to have been installed), but to no avail’. Thus, without it being necessary to rule on the credibility, as an item of evidence, of the broker’s letter, which the Commission disputes, the Court must find that, as the applicants’ themselves concede, the tanks in question were not resold because they had been built to match the specific characteristics of the vessels on which de Poli was to have installed them, not because of the Commission’s unlawful conduct on the occasion of its publication of the contested decision.
106. Second, and in any event, it must be noted that Idromacchine’s material damage in this connection is the direct result not of the Commission’s unlawful conduct but of de Poli’s failure to pay for the tanks. It is thus by means of an action for breach of contract before the national courts, not by the present procedure, that Idromacchine might, if appropriate, obtain compensation for this material damage.
107. It follows that the applicants have not proven any causal nexus between the Commission’s unlawful conduct and the material damage allegedly sustained by Idromacchine as a result of its having to bear the construction costs of the tanks in question, which remained unsold. The applicants’ claim for compensation in that regard must therefore be rejected.
108. Second, the applicants claim compensation of EUR 1 013 000 representing an alleged ‘productivity deficit of materials and equipment belonging to Idromacchine and used solely in the steam generator sector from 2005 to 2008’. They argue that ‘from 2005 onwards, Idromacchine was forced to assume a series of “business as usual” costs in order to keep a sector that had become unproductive precisely because of the information published’ in the contested decision afloat. In this connection they reproduce in their written submissions a table created by an Idromacchine employee, which shows that 14 pieces of equipment that Idromacchine acquired between 1995 and 2002 and whose total present value is EUR 1 013 000 were employed in the manufacture of tanks.
109. It must be pointed out that, whilst the sum sought by the applicants reflects, according to their estimates, the 2008 value of the equipment used to build tanks, that sum nevertheless bears no relation to the subject matter of the applicants’ claim for compensation by reason of the fact that equipment in question was not used for a period of three years following the adoption of the contested decision. That being so, it must be held that the damage in respect of which the applicants claim compensation of EUR 1 013 000 is neither real nor certain.
110. Moreover, it must be observed that, in any event, the applicants have not in this case proven any causal nexus between the Commission’s unlawful conduct and the fact that Idromacchine was unable to use the equipment in question for a period of three years following the adoption of the contested decision.
111. First, the applicants’ arguments that the steam generator sector grew between 2005 and 2008 and that no complaints against Idromacchine have ever been made by customers other than de Poli in no way implies that Idromacchine’s turnover, and consequently its ability to amortize the costs of the equipment in question, would not have diminished during that period had the contested decision not been published. The fact that a market is experiencing growth does not mean that the turnover of any given undertaking on that market will necessarily increase.
112. Next, as regards the broker’s letter which the applicants provided and which states that customers contacted about the sale of the tanks in question ‘continually expressed unanswerable reservations [in view of] the supposed defectiveness of [the] tanks [in question], as was declared by the European Commission in the [Official Journal] on 18 February 2005’, that letter cannot prove the existence of any sufficiently direct causal nexus between the publication of the contested decision and the fact that Idromacchine suffered a sharp drop in turnover between 2005 and 2008, with the result that it was unable to use its equipment for a period of three years following the adoption of the contested decision because of the mistakes made by the Commission. Indeed, it must be emphasised in this connection that the applicants have furnished no evidence to show that, because of the publication of the contested decision, existing or potential customers of Idromacchine declined to place any orders with it for tanks other than those referred to in the contested decision, or, for example, that following publication of the contested decision, Idromacchine was removed from the list of vendors on which it appeared and on which, according to the applicants’ written submissions, ‘it was necessary to be included in order to obtain any orders’.
113. Lastly, the applicants offer no explanation of the reasons why publication of the contested decision caused a drop in Idromacchine’s turnover despite the fact that the company was, according to its own written submissions, in a position to show any existing or potential customer that the conformity to current standards of the tanks in question had been definitively recognised by the Italian certification authority on 5 October 2004, before the contested decision was even published.
114. It is clear therefore from the observations made in paragraphs 108 to 113 above that the applicants have failed to prove any real and certain damage or any causal nexus between the Commission’s unlawful conduct and their alleged material damage arising from the alleged ‘productivity deficit of materials and equipment belonging to Idromacchine and used solely in the steam generator sector from 2005 to 2008’.
115. Third, the applicants claim compensation in the sum of EUR 534 000 to cover the loss of profits which Idromacchine allegedly suffered as a result of a decline in orders for tanks, that sum representing the total profits which it would have earned between 2005 and 2008 had the contested decision not been published. Suffice it to observe in this connection that, as was stated in paragraph 111 above, the applicants have furnished no evidence of a causal nexus between the Commission’s unlawful conduct and Idromacchine’s drop in turnover and, consequently, in its profits.
116. The Court must therefore reject as unfounded the applicants’ claim for compensation in so far as it relates to all their alleged material damage, which they estimate at EUR 5 459 641.28. It follows that the applicants’ requests, made under their first head of claim, for the award of compensatory and default interest on the abovementioned sum, must be rejected as unfounded.
117. In light of all the foregoing considerations, the Court must therefore uphold the present action in so far as the applicants claim compensation for the non-material damage suffered by Idromacchine and dismiss it as to the remainder.
Costs
118. Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
119. As the action has been partly successful, the Court considers it fair, having regard to the circumstances of the case, to order the Commission to bear its own costs and to pay two-thirds of the costs incurred by the applicants, who shall bear a third of their own costs.
Operative part
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Orders the European Commission to pay Idromacchine Srl compensation of EUR 20 000 in respect of the non-material damage it has suffered.
2. Orders that the compensation to be paid to Idromacchine be paid with compensatory interest, as from 18 February 2005 to the delivery of the present judgment, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points.
3. Orders that the compensation to be paid to Idromacchine be paid with default interest, as from the delivery of the present judgment to complete payment of that compensation, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points.
4. Dismisses the action as to the remainder.
5. Orders the Commission to bear its own costs and two thirds of the costs incurred by Idromacchine, Alessandro Capuzzo and Roberto Capuzzo, who are to bear a third of their own costs.