EN Official Journal of the European Union C 262/50

Action brought on 4 August 2004 by Brandt Italia SpA against the Commission of the European Communities

(Case T-323/04)

(2004/C 262/93)

Language of the case: Italian

An action was a brought before the Court of First Instance of the European Communities on 4 August 2004 against the Commission of the European Communities by Brandt Italia SpA, represented by Martijn van Empel, Claudio Visco and Salvatore Lamarca, lawyers.

The applicant claims that Court of First Instance should:

— declare void, and accordingly annul, Commission Decision C(2004)930 final of 30 March 2004;

— in the alternative, declare the decision to be partially void, as regards only Article 3 thereof in so far as it orders the Italian State to recover illegally disbursed aid;

— order the Commission to pay the costs.

Pleas and main arguments adduced in support:

The contested decision declared incompatible with the common market State aid relating to urgent provisions in favour of employment which was implemented by Italy by means of Decree Law No 23 of 14 February 2003, converted into the Law of 17 April 2003, requiring the Italian Government to recover from the applicant the aid in question which it is said to have received in connection with the sale of a branch of the refrigeration business of Ocean Spa, situated in Verolanuova, Brescia.

In support of its claims, Brandt contests first of all the premise of the Decision that Decree No 23/2003 conferred on the purchasers an individual benefit, resulting in distortion of competition. In fact, the alleged benefits deriving from the decree are, on the basis of the current legislation governing the Earnings and Mobility Supplement Fund (legislation of a general nature), generally available to any other company which takes on workers from the lists of workers available for transfer. Therefore, Decree 23/2003, although alleviating the position of workers who were transferred, does not grant any economic benefit to the purchasers, namely Brandt in the present case. Also, the applicant claims that the Commission failed to undertake a complete and detailed evaluation of the economic effects of the national measure, failing to take account of the additional costs incurred by companies which acquire businesses, they being obliged to take on burdens and responsibilities (both social and financial) to which — in the absence of the measure — they would not be subject. Finally, the applicant refers to the general nature of the measure in question, which in fact gives rise to the same consequences as those already provided for by the general provisions of Law No 223/91. According to the applicant, it was because, when examining Decree 23/2003, the Commission classified the measure as being similar to a general aid scheme that it ordered the Italian Government to recover the financial benefit which Brandt allegedly received on an individual basis by virtue of the decree. The Commission, by ordering repayment of an individual aid in the context of a decision relating to an aid scheme, infringed Article 88 EC, and also failed to comply with the provisions of Regulation (EC) No 659/99 regarding the adoption of provisional recovery measures.

The applicant also alleges infringement of Articles 88 and 89 EC and of Regulations Nos 994/98 and 2204/2002. In that connection, it complains that the Commission declared to be retrospectively illegal a measure potentially covered by the exemption rules contained in Regulation No 2204/2002, which was therefore classifiable as existing aid within the meaning of Article 88 EC. Moreover, the applicant claims, the Commission unlawfully arrogated to itself the right to determine that Decree 23/2003 was not covered by Regulation No 2204/2002, thereby exceeding the limits applicable to its power of intervention under the combined provisions of Article 89 EC and of Regulations Nos 994/98 and 2204/2002.

The applicant also observes that Article 3 of the contested decision, which imposes on Italy an obligation to recover the alleged State aid from the beneficiaries of the measure, breaches the principle of the protection of legitimate expectations.

Finally, the applicant alleges failure to fulfil the obligation to state reasons, laid down by Article 253 EC, and also misuse of powers.