EN Official Journal of the European Union C 267/39

Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-301/02 AEM v Commission

(Case C-320/09 P)

2009/C 267/70

Language of the case: Italian

Parties

Appellant: A2A SpA, formrely ASM Brescia SpA (represented by: A. Giardina, A. Santa Maria, C. Croff and G. Pizzonia, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— Set aside the judgment in Case T 301/02 (‘the judgment’) on the ground that it infringes Community law, in particular Article 87 of the EC Treaty, and fails to state adequate reasons, in so far as it classifies the three-year income tax exemption as State aid;

— set aside the judgment on the ground that it applies Community law in a manner that is incorrect and contradictory, in so far as it does not classify the three-year income tax exemption as existing aid;

— set aside the judgment on the ground that it infringes Community law, in so far as it finds that the order for recovery in the Decision (1) is lawful; and, accordingly,

— annul the Decision in so far as it finds that the transitional scheme ensuring fiscal continuity for public utilities with majority public shareholdings constitutes unlawful State aid incompatible with the common market (Article 2 of the Decision) and/or in so far as it orders Italy to recover that aid from the beneficiaries (Article 3 of the Decision);

— order the Commission to pay the cots.

Pleas in law and main arguments

By its first ground of appeal, A2A SpA alleges that the Court of First Instance infringed Article 87(1) EC and failed to state adequate reasons, in so far as the judgment classifies the three-year income tax exemption as State aid. In particular, according to the appellant, the Commission failed to demonstrate in the Decision that, in the circumstances of the case, two of the conditions laid down in Article 87(1) EC, namely the distortion of competition and the effect on trade between Member States, are satisfied. The Court of First Instance failed properly to verify the assumptions on which the Commission based its conclusion that the measure in question was to be classified as ‘aid’, which it was, in fact, required to do in accordance with its duty to carry out a ‘comprehensive’ review imposed by Community case-law.

By its second ground of appeal, in the alternative, the appellant alleges infringement by the Court of First Instance of Article 88 EC and of its duty to state reason and, at the same time, seeks the annulment of the judgment in so far as it classifies the three-year income tax exemption as ‘new aid’. In particular, the Court of First Instance, blindly repeating the Commission’s findings, did not accept that the three-year exemption measures in favour of municipal undertakings converted into public limited companies may be regarded as ‘existing aid’. Instead, it reached the opposite conclusion, considering that the tax exemption scheme in question, which was introduced before the entry into force of the EC Treaty, also applied to municipal undertakings, which, as the Commission itself accepted, constitute the same economic entities as the companies set up under Law No 142/90.

Finally, by its third ground of appeal, A2A submits, in the further alternative, that the judgment should be set aside on the ground that it infringes Community law and Community law principles, in so far as it finds that the order for recovery in the Decision is lawful. According to the appellant, the judgment should be set aside in that, in contrast with previous decisions of the Community judicature, it upholds the lawfulness of the general order for recovery in the Decision and, essentially, finds that the national authorities do not have any discretion whatsoever in the matter.

(1) Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax incentives and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).