EN Official Journal of the European Union C 267/42

Appeal brought on 21 August 2009 by Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-307/02 Acegas v Commission

(Case C-341/09 P)

2009/C 267/74

Language of the case: Italian

Parties

Appellant: Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) (represented by F. Ferletic and F. Spitaleri, avvocati, and L. Daniele, academic lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— setting aside of the judgment of the Court of First Instance of 11 June 2009 in Case T-307/02 ACEGAS-APS v Commission and referral of the case back to the Court of First Instance for a decision on the merits of the action;

— an order that the Commission should pay the costs of the appeal and that the costs incurred in relation to the action at first instance should be reserved; If the Court should decide that the state of the proceedings permits it to give final judgment in the matter:

— setting aside in its entirety of Commission Decision 2003/193/EC (1) 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;

— or, alternatively, annulment of Article 3 of the contested decision in so far as it requires the Italian State to recover the aid granted from the beneficiaries;

— an order that the Commission of the European Communities should pay the costs incurred on appeal and at first instance.

Pleas in law and main arguments

First plea in law: infringement of the fourth paragraph of Article 230 EC — ACEGAS-APS found not to be individually concerned on the basis of incorrect and irrelevant factual matters

ACEGAS-APS stresses that the Court’s settled case-law makes capacity to bring an action against Commission decisions relating to aid schemes subject to two conditions: the applicant must be the actual beneficiary of aid granted under the scheme that is the subject of the decision and the decision must contain an order for recovery of the aid. ACEGAS-APS observes that in the instant case those two conditions were not satisfied. The Court of First Instance erred, therefore, in declaring inadmissible the originating application, making reference to further factual matters that were incorrect, irrelevant or foreign to the jurisdiction of that court.

Second plea in law: infringement of the fourth paragraph of Article 230 EC — the Court of First Instance wrongfully took into consideration, in determining whether the applicant was individually concerned, facts and matters of later date than the adoption of the decision

ACEGAS-APS maintains that the conditions for capacity to bring proceedings must be met when the contested decision is adopted. The Court of First Instance incorrectly, therefore, ruled that ACEGAS-ASP was not individually concerned, basing its finding on subsequent factual matters relating to the procedure undertaken by the competent Italian authorities for the recovery of the aid allegedly granted.

Third plea in law: infringement of the appellant’s rights of defence — flaws in the procedure before the Court of First Instance damaging to the appellant’s interests — distortion of the evidence — defect in that the statement of reasons is deficient and contradictory

During the proceedings at first instance, the Court of First Instance put two written questions, to ACEGAS-APS and the Italian Republic respectively, asking them to inform it of the amount of the aid allegedly received by the appellant. By asking those questions the Court of First Instance acted in breach of ACEGAS-APS’s rights of defence. Furthermore, it distorted the meaning of the replies given, which confirmed that the appellant was the ‘actual beneficiary’ of the income tax exemption scheme challenged by the Commission.

(1) OJ 2003 L 77, p. 21.