Judgment of the General Court (Seventh Chamber) of 13 September 2012 — Italy v Commission

(Case T-379/09)

‛State aid — Exemption from excise duty on diesel used to heat glasshouses — Decision declaring the aid scheme incompatible with the common market and ordering the recovery of the aid paid — Duty to state reasons — Selective nature — Effect on trade between Member States — Effect on competition — Directive 92/81/EEC — Directive 2003/96/EC — Community framework for State aid for the protection of the environment’

1. State aid — Commission decision finding aid schemes incompatible with the common market and ordering repayment of the aid paid — Duty to state reasons — Scope (Arts 87(1) EC, 88(2) and (3) EC and 253 EC) (see paras 25, 32)

2. State aid — Concept — Selective nature of the measure — Tax relief measure benefiting only users of diesel for heating glasshouses — Included — Justification by the nature and economy of the national tax system — Criteria for assessment — Burden of proof on the Member State concerned (Art. 87(1) EC) (see paras 38, 42, 47-48, 50-51)

3. State aid — Concept — Exemption from excise duty on diesel used for heating glasshouses — Included — Existence of a derogation from the competition rules by virtue of Articles 33 EC and 36 EC or Directives 92/81 and 2003/96 — None (Arts 33 EC, 36 EC, 37 EC and 87(1) EC; Council Directives 92/81 and 2003/96) (see paras 42, 70-72, 88)

4. State aid — Effect on trade between Member States — Adverse effect on competition — Aid of little importance in a sector with lively competition — Agricultural sector (Art. 87(1) EC) (see paras 57-58, 60)

5. State aid — Prohibition — Exceptions — Discretion of the Commission — Criteria for assessment — Effect of guidelines adopted by the Commission (Art. 87(3) EC) (see paras 77-78)

6. State aid — Administrative procedure — Compatibility of the aid with the common market — Burden of proof on the provider and the potential recipient of the aid (Art. 88(2) EC) (see paras 81-82)

7. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Assessment in the light of Article 87 EC — Taking into account previous practice — Exclusion (Art. 87(3)(c) EC) (see para. 102)

Re:

APPLICATION for annulment of Commission Decision 2009/944/EC of 13 July 2009 on State aid schemes C 6/04 (ex NN 70/01) and C 5/05 (ex NN 71/04) implemented by Italy in favour of glasshouse growers (exemption from excise duty on diesel used to heat glasshouses) (OJ 2009 L 327, p. 6).

Operative part

The Court:

1. Dismisses the action;

2. Orders the Italian Republic to pay the costs.

Judgment of the General Court (Seventh Chamber) of 13 September 2012 — Italy v Commission

(Case T-379/09)

‛State aid — Exemption from excise duty on diesel used to heat glasshouses — Decision declaring the aid scheme incompatible with the common market and ordering the recovery of the aid paid — Duty to state reasons — Selective nature — Effect on trade between Member States — Effect on competition — Directive 92/81/EEC — Directive 2003/96/EC — Community framework for State aid for the protection of the environment’

1. State aid — Commission decision finding aid schemes incompatible with the common market and ordering repayment of the aid paid — Duty to state reasons — Scope (Arts 87(1) EC, 88(2) and (3) EC and 253 EC) (see paras 25, 32)

2. State aid — Concept — Selective nature of the measure — Tax relief measure benefiting only users of diesel for heating glasshouses — Included — Justification by the nature and economy of the national tax system — Criteria for assessment — Burden of proof on the Member State concerned (Art. 87(1) EC) (see paras 38, 42, 47-48, 50-51)

3. State aid — Concept — Exemption from excise duty on diesel used for heating glasshouses — Included — Existence of a derogation from the competition rules by virtue of Articles 33 EC and 36 EC or Directives 92/81 and 2003/96 — None (Arts 33 EC, 36 EC, 37 EC and 87(1) EC; Council Directives 92/81 and 2003/96) (see paras 42, 70-72, 88)

4. State aid — Effect on trade between Member States — Adverse effect on competition — Aid of little importance in a sector with lively competition — Agricultural sector (Art. 87(1) EC) (see paras 57-58, 60)

5. State aid — Prohibition — Exceptions — Discretion of the Commission — Criteria for assessment — Effect of guidelines adopted by the Commission (Art. 87(3) EC) (see paras 77-78)

6. State aid — Administrative procedure — Compatibility of the aid with the common market — Burden of proof on the provider and the potential recipient of the aid (Art. 88(2) EC) (see paras 81-82)

7. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Assessment in the light of Article 87 EC — Taking into account previous practice — Exclusion (Art. 87(3)(c) EC) (see para. 102)

Re:

APPLICATION for annulment of Commission Decision 2009/944/EC of 13 July 2009 on State aid schemes C 6/04 (ex NN 70/01) and C 5/05 (ex NN 71/04) implemented by Italy in favour of glasshouse growers (exemption from excise duty on diesel used to heat glasshouses) (OJ 2009 L 327, p. 6).

Operative part

The Court:

1. Dismisses the action;