EN Official Journal of the European Union C 153/27

Appeal brought on 27 April 2009 by Iride SpA and Iride Energia SpA against the judgment delivered by the Court of First Instance (Second Chamber) on 11 February 2009 in Case T-25/07 Iride SpA, Iride Energia SpA v Commission of the European Communities

(Case C-150/09 P)

2009/C 153/51

Language of the case: Italian

Parties

Appellants: Iride SpA, Iride Energia SpA (represented by: L. Radicati di Brozolo, M. Merola, T. Ubaldi, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— Set aside the judgment;

— grant the forms of order already sought at first instance or, in the alternative, refer the case back to the Court of First Instance, pursuant to Article 61 of the Statute of the Court of Justice;

— order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings.

Pleas in law and main arguments

The appellants put forward two grounds of appeal in support of their claims.

The first ground of appeal relates to an error in law in the interpretation and application of Article 253 EC with reference to a failure to state adequate reasons in the decision at issue. The Court of First Instance erred in law in finding, with regard to whether the conditions laid down in Article 87(1) EC are satisfied in the present case, that the following are sufficient for compliance with the obligation to state reasons in Article 253 EC: (i) the simple statement by the Commission that it had established that the measure in question was to be regarded as State aid; (ii) that adequate reasons could be given for the contested measure by referring to the decision to initiate the investigation procedure and an earlier separate decision of the Commission.

The second ground of appeal relates to distortion of the pleas in the action and an error in law on the part of the Court of First Instance in its assessment of the scope of the Deggendorf case-law for the purpose of the assessment of the present case. In particular, the appellants submit that the Court of First Instance:

(i) distorted the pleas put forward by the appellants at first instance in that it claimed that they had misused the procedure for review of State aid, without, however, in fact clarifying what that misuse consisted of;

(ii) failed to identify the error made by the Commission in its assessment of the scope of the judgment in Deggendorf in so far as it applies to the present case in that it failed to carry out a concrete and specific assessment of the distortion of competition and intra-Community trade resulting from the cumulative effect of the new aid and the earlier aid that had not been recovered;

(iii) failed to identify the error made by the Commission in its assessment of the scope of the judgment in Deggendorf in so far as it applies to the present case in that, as a matter of fact, instead of regarding it as a further criteria in the assessment of whether aid is compatible, it made the non-recovery of earlier aid an additional and decisive condition for determining whether aid is compatible that is not provided for in the Treaty;

(iv) failed to point out that the Commission’s excessive and abusive interpretation of the judgment in Deggendorf in this case has the effect of transforming that case-law into a means of penalising conduct contrary to the Treaty on the part of Member States in a manner that is not envisaged in the Treaty or secondary legislation;

(v) failed to point out that, when it decided to initiate the formal investigation procedure as regards the measure notified by Italy, the Commission indicated that it was of the view that it had available to it all the information necessary to conduct its investigation into whether the measure was compatible. The Commission thereby contradicted the argument underlying the contested decision, namely that, in the course of the notification procedure, the Italian authorities and the recipient company failed to provide it with sufficient information to enable it to carry out an analysis as to whether the measure was compatible;