EN Official Journal of the European Union C 317/20

Appeal brought on 15 September 2010 by Cementir Italia Srl against the judgment delivered on 1 July 2010 by the General Court (Fifth Chamber) in Case T-63/08 Cementir Italia Srl v European Commission

(Case C-449/10 P)

()

2010/C 317/37

Language of the case: Italian

Parties

Appellant: Cementir Italia Srl (represented by: T. Salonico, G. Barone and A. Marega, avvocati)

Other party to the proceedings: European Commission

Form of order sought

— set aside the judgment under appeal (1) and the decision (2) in so far as they find that the contested measure is not indemnifying and compensatory in nature and instead take the view that that measure constitutes unlawful and incompatible State aid; and/or

— set aside the judgment under appeal in so far as it finds that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, set aside the decision in so far as it orders Italy to proceed immediately to recover the aid plus interest; and

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

Pleas in law and main arguments

The appellant submits that the judgment under appeal is defective and must therefore be set aside for the following reasons:

1. Breach of Articles 107 TFEU and 108 TFEU, inconsistent reasoning and manifest error by reason of the distortion of the evidence submitted with regard to the interpretation of the contested measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and national case-law which were invoked by the appellant at first instance and which indicate that the contested measure does not constitute State aid but has retained the compensatory purpose originally intended by the Italian legislature in 1962 and recognised by the Commission and by the General Court.

2. Breach of Article 14(1) of Regulation (EC) No 659/1999 (3) and inconsistent and inadequate reasoning in that the General Court concluded that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations. The General Court’s judgment is defective and inadequately reasoned inasmuch as it held that the prolonged silence on the Commission’s part with regard to the points of clarification provided by the Italian authorities at the end of 1991 concerning the fact that the first prolongation of the Terni tariff retained the original compensatory function did not constitute a circumstance which was such as to create legitimate grounds for the appellant to believe that the prolongations of the Terni tariff, including the contested measure, did not amount to State aid.

(1) Judgment of 1 July 2010 of the General Court of the European Union (Fifth Chamber) in Case T-63/08.

(2) Commission Decision 2008/408/EC of 20 November 2007 on the State aid C 36/A/06 (ex NN 38/06) implemented by Italy in favour of ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche (OJ 2008 L 144, p. 37).

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty [Article 88 EC] (OJ 1999 L 83, p. 1).