Action brought on 19 April 2010 — Alcoa Trasformazioni v Commission

(Case T-177/10)

(2010/C 161/81)

Language of the case: Italian

Parties

Applicant: Alcoa Trasformazioni Srl (Portoscuso, Italy) (represented by: M. Siragusa and T. Müller-Ibold, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the Commission’s decision of 19 November 2009 (C(2009) 8112) in so far as it concerns State aid C 36/B/2006 (ex NN 38/2006) allegedly granted by Italy to Alcoa Trasformazioni Srl;

— order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The present action for annulment concerns the decision adopted by the European Commission on 19 November 2009 with regard to Alcoa Trasformazioni Srl (‘the contested decision’). (1)

That decision categorised the prolongation of the tariff scheme applicable to the Alcoa installations in Sardinia and the Veneto, provided for under Article 11(11) of Decree No 35 of 14 March 2005, (2) with effect from 1 January 2006, as new State aid incompatible with the common market, and ordered its partial recovery.

It should be borne in mind in that regard that since 1996 a preferential tariff has been applied to the applicant for the electricity for its two primary aluminium smelters located respectively in Sardinia and the Veneto. That tariff was brought to the knowledge of the Commission in the context of the privatisation of Alumix, an aluminium producer controlled by the Italian State, which was later sold to the applicant. In 1996, the Commission reached the conclusion that the tariff in question did not constitute State aid.

In the contested decision, the Commission maintains that, following a number of changes, the tariff at issue is a measure which is completely different from the measure examined in 1996.

According to the applicant, the contested decision is unlawful in view of the following:

— infringement of Article 107(1) TFEU in that it found the tariff for the electricity purchased by Alcoa for its two primary aluminium smelters, located respectively in Sardinia and the Veneto, as ‘aid’, even though it did not confer any advantage on the recipient;

— infringement of Article 107(3) TFEU in that it miscalculated the worth of the aid;

— infringement of Article 107(3) TFEU in that it erred in finding that the tariff in question constituted operating aid, incompatible with the Guidelines on State aid for regional purposes;

— breach of the principle of sound administration and of Article 107(3) TFEU in that, in the course of the procedure, the Commission radically changed its own assessment regarding the impact caused by the introduction of the market mechanism which the Commission itself had proposed for Sardinia, without giving any explanation or warning and, as if that were not enough, at the end of a faulty investigation;

— breach of the principle of the protection of legitimate expectations and infringement of Article 108 TFEU in that it categorised the tariff as ‘new’ aid and as ‘existing’ aid.

Lastly, the applicant maintains that, in adopting the contested decision, the Commission breached a number of essential procedural requirements.

(1) Commission Decision of 19 November 2009 concerning State Aid No C 38/A/2004 (ex NN 58/2004) and No C 36/B/2006 (ex NN 38/2006) implemented by Italy in favour of Alcoa Trasformazioni Srl.

(2) Laying down ‘Urgent provisions under the Action plan for economic, social and territorial development’ and converted into law, with amendments, by Law No 80 of 14 May 2005.