EN Official Journal of the European Union C 90/17

Appeal brought on 17 February 2009 by Nuova Agricast Srl and Cofra Srl against the judgment delivered by the Court of First Instance (First Chamber) on 2 December 2008 in Joined Cases T-362/05 and T-363/05 Nuova Agricast Srl and Cofra Srl v Commission

(Case C-67/09 P)

2009/C 90/28

Language of the case: Italian

Parties

Appellants: Nuova Agricast Srl, Cofra Srl (represented by: M. A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

Principal Form of order sought

— Set aside the judgment under appeal in so far as it finds that the Commission’s letter of 29 May 2000 does not contain an untruth and therefore reject the Commission’s counterclaim on its merits;

— by giving a decision on the questions included in the measures of organisation of procedure of 2 March 2006, declare that, as a result of its conduct as described in the applications at first instance, the Commission flagrantly and gravely infringed Community law, resulting in financial loss to the appellants;

— refer the case back to the Court of First Instance to adjudicate on the questions which were not included in the measures of organisation of procedure of 2 March 2006; and

— with regard to costs: (i) order the Commission to pay the costs in relation to the proceedings before both Courts, or (ii) reserve the costs;

or, in the event that the case cannot be decided on the merits:

In the alternative

— Set aside the judgment under appeal in so far as it finds that the Commission’s letter of 29 May 2000 does not contain an untruth and therefore reject the Commission’s counterclaim on its merits;

— refer the case back to the Court of First Instance;

— reserve the costs.

Pleas in law and main arguments

FIRST PLEA OF ILLEGALITY: the Court of First Instance erred in law in so far as it considered that the Commission was entitled to authorise a scheme which is contrary to the principles of legal certainty, the protection of legitimate expectations and non-discrimination as between undertakings participating in the same aid scheme. As a consequence, the Court of First Instance infringed Article 87 EC and the Community case-law which establishes that the procedure laid down in Article 88 EC can never constitute a mechanism for circumventing or infringing the rules and principles of Community law and that the Commission cannot authorise schemes which infringe other rules and principles of Community law.

The appellants submit that, by interpreting the 1997 decision as it did at paragraph 81 of the judgment under appeal, the Court of First Instance interpreted the entire aid scheme authorised by that decision in such a manner as to render its interpretation incompatible with the principles of legal certainty, the protection of legitimate expectations and non-discrimination because the scheme, thus interpreted, while it provided specific assurances to the undertakings which had submitted an application for the first time in the second tender procedure in 1999 that they too would be able, if necessary, to reformulate those applications, made it logically impossible for them to do so because, after 31 December 1999, it was never possible for that tender procedure to be proceeded with, even on the basis that it was restricted to reformulated applications. The appellants therefore conclude that, thus interpreted, the scheme infringed not only the principles of legal certainty and the protection of legitimate expectations but also the principle of non-discrimination on the ground that only the undertakings which participated for the first time in the second tender procedure in 1999 were not permitted to do what was permitted to all the undertakings which participated in the earlier calls.

SECOND PLEA OF ILLEGALITY: The Court of First Instance erred in law in so far as it omitted to ascertain whether the interpretation which it gave of the approval decision of 1997 could be substituted by another interpretation which complied with the abovementioned principles of law. The Court of First Instance therefore infringed the case-law which imposes upon that court a duty to carry out such an assessment.

The appellants maintain that, by interpreting in an abstract and general manner the scheme thus authorised by the 1997 decision, the Court of First Instance omitted to ascertain whether the interpretation which it gave of the approval decision of 1997 could be substituted by another interpretation which complied with the abovementioned principles of law and therefore erred in law, since it infringed the case-law which establishes that if the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the EC Treaty rather than to the interpretation which leads to its being incompatible with the Treaty.

THIRD PLEA OF ILLEGALITY: The appellants submit that, in so far as it found that the letter of 29 May 2000 does not contain an untruth, the judgment under appeal (at paragraphs 50 and 51) is vitiated by an error in the interpretation of that letter and by distortion of the facts and should be set aside. The appellants also seek the rejection on its merits of the Commission’s counterclaim, which seeks the removal from the text of the applications the appellants’ allegation that the Commission told an ideologically motivated untruth in drafting the letter of 29 May 2000 in such a way as to give the impression that it was the Italian authorities which had failed even to mention at the meeting held on 16 May 2000 the existence of undertakings within the category of the third tender procedure