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-601/20 Tirrenia di navigazione SpA v European Commission

(Case C-515/22 P)

(2022/C 359/63)

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-601/20;

— declare Articles 1(3) and 2 of Commission Decision (EU) 2020/1411 of 2 March 2020;

— 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 of 18 May 2022 in Case T-601/20, Tirrenia di navigazione SpA v Commission, by which that court dismissed the action for annulment of Articles 1(3) and 2 of Decision (EU) 2020/1411 of 2 March 2020, by which the Commission declared ‘aid granted to Adriatica for the period January 1992 to July 1994 in relation to the Brindisi/Corfu/Igoumenitsa/Patras connection is incompatible with the common market’, which was ‘unlawfully put into effect in breach of Article 108(3) TFEU’.

By the first ground of appeal, the appellant alleges an infringement of procedure concerning the limitation period for the recovery of interest on aid found to be illegal and incompatible.

According to the appellant, the General Court made a number of errors: (a) in holding, in respect of the specific finding that interest had not been recovered for the period between 1 January 2007 and 26 March 2007, that this was not outside of the ten-year limitation period; and (b) in holding that the appellant could not challenge the failure to establish such an infringement, which constitutes a manifest infringement of the audi alteram partem principle and, therefore, of the rights of the defence, as regards the Member State concerned.

By the second ground of appeal, the appellant alleges that the aid was erroneously categorised as new, that the decision which declared the State aid to be new and incompatible is unlawful, and that the obligation to state reasons has not been met and that the proportionality principle has been infringed.

The General Court has not shown how the Commission, through Decision (EU) 2020/1411 of 2 March 2020, rectified the defect established in the judgment of the General Court of 4 March 2009 in Joined Cases T-265/04, T-292/04 and T-504/04 concerning a 2004 decision (2005/163/EC).

The General Court erred in finding that the Commission had corrected its failure to state reasons established in 2009 and had shown with Decision (EU) 2020/1411 that the subsidies for PSOs granted to Adriatica are new aid.

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 Commission correctly categorised the subsidies for PSOs granted to Adriatica for the period from January 1992 to July 1994 in relation to the Brindisi/Corfu/Igoumenitsa/Patras connection as incompatible with the internal market.

The appellant claims that the General Court was necessarily obliged to verify whether the Commission, in Decision (EU) 2020/1411 (a) specifically defined the situation on the market; (b) correctly compared the purpose of the aid measure with the purpose of the agreement; (c) correctly explained how the distortion of competition caused by the aid measure had been worsened by the combination of that measure (otherwise found to be compatible) and participation in a cartel; and, therefore, (d) stated reasons for the cause and effect relationship as far as concerns the existence of consequent obstacles to intra-Community trade.

The appellant also claims that the conclusions reached by the Tribunal are contrary to the general principle of proportionality.

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) 2020/1411 of 2 March 2020 was not of an excessive length and that, therefore, the principles of legal certainty, good administration and proportionality had not been infringed.

Further, the appellant claims that, in accordance with the principle of the protection of legitimate expectations and Articles 16 and 17 of the Charter of Fundamental Rights, Decision (EU) 2020/1411 of 2 March 2020 could not have required the recovery of the aid.

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.