EN Official Journal of the European Union C 37/4

Appeal brought on 19 November 2007 by S.A.BA.R. SpA against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-176/07 S.A.BA.R. SpA v Commission of the European Communities

(Case C-501/07 P)

(2008/C 37/05)

Language of the case: Italian

Parties

Appellant: S.A.BA.R. SpA (represented by: E. Coffrini and F. Tesauro, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— annul and/or amend in its entirety the order of the Court of First Instance at present under appeal, and rule as appropriate;

— grant the forms of order already sought at first instance.

Pleas in law and main arguments

By the Commission decision of 5 June 2002 (1)‘on State aid … in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding’, the income tax exemption scheme provided for by Article 3(70) of Law No 549/1995 and by Article 66(14) of Decree-Law No 331/1993, as converted and amended, in favour of joint-stock companies with majority public shareholdings and providing local public utilities was declared to constitute State aid incompatible with the common market. The Commission decision did not relate to specific companies but covered companies established within the terms of Article 22 of Law No 241/1990 with majority public shareholdings. The decision was for that reason not notified to any company (and was not notified to the appellant) as no individual addressees were specifically identified. The Italian State, by way of Legislative Decree No 10 of 15 February 2007, gave effect to the abovementioned decision, allocating the task of recovery to the revenue authorities. Accordingly, on 20 March 2007, the Guastalla revenue office sent to the appellant company the following payment demands: payment demand No 3796 of 15 March 2007 for the capital sum of EUR 1 912 128,47 plus interest of EUR 2 192 225; payment demand No 3799 of 15 March 2007 for the capital sum of EUR 815 406,94 plus interest of EUR 783 529; and payment demand No 3800 of 15 March 2007 for the capital sum of EUR 439 549,29 plus interest of EUR 712 588.

The appellant company, however, is not a company with a majority public shareholding, but is, rather, entirely public. For that reason, ‘the Commission's findings and its decision’ cannot apply to it.

The appellant has in-house responsibility for local public utilities in relation to the eight associated communes, and was established specifically for that purpose in accordance with the arrangements set out in the legislation.

The appellant manages the public utilities under a private structure, within an essentially local context, without being able to influence free competition, which cannot exist as there is no market.

A company with a wholly public shareholding is nothing other than an indirect body of the associated communes, which are the actual recipients of the fiscal aid with which the Commission takes issue.

On objective and subjective grounds, therefore, the tax exemption granted to the appellant cannot be classified as unwarranted State aid at variance with the requirements of Article 87 EC.

For the reasons outlined, an action was brought before the Court of First Instance against the abovementioned Commission decision. It was registered as Case T-176/07 and assigned to the Fourth Chamber. A decision in the case was given by way of an order of inadmissibility of the Court of First Instance of 17 September 2007 based on the ground of failure to comply with the time-limit laid down in the fifth paragraph of Article 230 EC, according to which the action for annulment ought to have been brought within two months of the publication of the contested measure, or of its notification to the appellant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be, in accordance with Article 102(1) of the Rules of Procedure of the Court of First Instance.

It is submitted that that finding is without basis, also in the light of the judgments in Case 730/79 Philip Morris Holland (2), Case 323/82 Intermills (3), Case T-358/94 Air France (4), and, in particular, the judgment of the Third Chamber of the Court of Justice in Joined Cases C-346/03 and C-529/03 Atzeni and Others (5), for which reason it is requested in the present appeal that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought immediately after the appellant company had become aware that it was one of the addressees of the Commission's decision, that is to say, when it was notified of the payment demands issued by the revenue office.

The order of the Court of First Instance is also challenged on the ground that it gave effect to a misapplication of Article 225 EC.

The application for annulment of the Commission decision is to be treated as inherently linked to the request that the appellant not be made subject to that decision. It is accordingly requested that the order made at first instance be amended, also in regard to the declared lack of competence ratione materiae on the part of the Court of First Instance.

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

(2) [1980] ECR 2671.

(3) [1984] ECR 3809.

(4) [1996] ECR II-2109.

(5) [2006] ECR I-1875.