Appeal brought on 29 July 2022 by Tirrenia di navigazione SpA against the judgment of the General Court (Eighth Chamber) delivered on 18 May 2022 in Case T-593/20 Tirrenia di navigazione SpA v European Commission

(Case C-514/22 P)

(2022/C 359/62)

Language of the case: Italian

Parties

Appellant: Tirrenia di navigazione SpA (represented by: B. Nascimbene, F. Rossi Dal Pozzo and A. Moriconi, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 18 May 2022 in Case T-593/20;

— declare Articles 2, 3 and 4 and, in the alternative, Articles 6 and 7 of Commission Decision (EU) 2020/1412 of 2 March 2020, which order the immediate and effective recovery of the alleged aid, to be void;

— in the alternative to the point above, refer the case back to another chamber of the General Court;

— order the defendant at first instance to pay the costs.

Grounds of appeal and main arguments

The appellant challenges the judgment of the General Court in Case T-593/20, Tirrenia di navigazione SpA v Commission, by which that court dismissed the action for annulment of Articles 2, 3 and 4 and, in the alternative, Articles 6 and 7 of Decision (EU) 2020/1412 of 2 March 2020, by which the Commission concluded that certain measures relating to the appellant were to be regarded as illegal and incompatible State aid.

By the first ground of appeal, the appellant alleges an infringement of Articles 107(1) and 108(2) TFEU and of the 2004 Rescue and Restructuring Guidelines.

The appellant submits that the General Court made an error in law and failed to state reasons in so far as it finds that the appellant had failed to ensure observance of the conditions in paragraph 25(c) of the 2004 Guidelines.

On the contrary, the appellant submits that the Italian Government had (a) duly informed the Commission of the plan to privatise the business branch; (b) confirmed the intention to repay the rescue aid before the expiry of the six-month time limit using the proceeds of privatisation; and (c) published the liquidation plan on its own website. Therefore, it had put the Commission in a position to be perfectly aware of its own plans for a privatisation procedure as part of its liquidation plan and for subsequent repayment of the rescue aid.

According to the appellant, the formalistic approach adopted by the Commission and shared by the General Court is contrary to the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, as well as being contrary to the principle of effectiveness.

By the second ground of appeal, the appellant alleges an infringement of Article 107(1) TFEU and of Article 108(2) TFEU by making reference to exemptions from paying certain taxes.

The appellant submits that the General Court made an error in law and failed to state reasons in so far as, with regard to ‘indirect taxes’, it found the plea of inadmissibility raised by the Commission in its counterclaim to be well founded.

In addition, the General Court made an error in law in its assessment of the applicability of Article 107(1) TFEU to the contested measure relied on by the appellant concerning the exemption from certain taxes, and the assessments by the General Court in that respect contain an inadequate statement of reasons.

Such an exemption from corporate income tax is, however, entirely conditional on the realisation of future and uncertain events such as to prevent any advantage in the form of the exemption being used by the appellant hitherto and to make it entirely possible, as is acknowledged in the decision, that such an advantage may be available in the future.

Further, the appellant claims that, in addition to the absence of any advantage, other constituent elements of the concept of aid are similarly lacking: the impact of the measure on trade within the European Union and the undermining of competition.

Thus, this exemption falls outside the concept of State aid within the meaning of Article 107(1) TFEU and does not, therefore, constitute State aid.

By the third ground of appeal, the appellant alleges infringement of the principle of legal certainty and good administration with regard to the duration of the procedure, as well as the principle of the protection of legitimate expectations and infringement of the principle of proportionality.

The appellant submits that the General Court made an error in law and failed to state reasons in so far as it affirms that, as a whole, the procedure that led to the adoption of Decision (EU) 2020/1412 was not of an excessive length and that, therefore, the principles of legal certainty, good administration and proportionality had not been infringed.

With regard to infringement of the principle of proportionality, the General Court found the plea of inadmissibility raised by the Commission in its counterclaim to be well founded and, in doing so, made an error in law.

Further, the appellant claims that Decision (EU) 2020/1412, in accordance with the principle of the protection of legitimate expectations and Articles 16 and 17 of the Charter of Fundamental Rights, could not have required the recovery of the disputed aid measures from Tirrenia in AS.

According to the appellant, the General Court, by failing to find that the Commission had infringed the general principles referred to above and the Charter of Fundamental Rights, made an error in law.

By the fourth ground of appeal, the appellant alleges that the General Court failed to place an item of evidence in the file in the case.

The appellant complains that it was unable to deposit in the file in the case, in accordance with to Article 85(3) of the Rules of Procedure of the General Court, Commission Decision of 30 September 2021 on the measures SA.32014, SA.32015, SA.32016 (2011/C) (ex 2011/NN) implemented by Italy and the Region of Sardinia in favour of Saremar (notified under document C(2021) 6990), which the appellant acquired from the Commission following a request for access to the documents.

According to the appellant, in view of the relevance of the Saremar decision, the failure to place this additional evidence in the file in the case failed to give effect to the judgment of the General Court, both by reason of the fact that this infringed the General Court’s own Rules of Procedure and was contrary to the duty to state reasons imposed on any EU institution, and by reason of the fact that it constituted a manifest infringement of the appellant’s rights of defence.