Case T-35/02: Action brought on 13 February 2002 by ALITALIA against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, air transport, appeal to the Court (EU), capital increase, control of State aid

4.5.2002

EN

Official Journal of the European Communities

C 109/57

Action brought on 20 February 2002 by EURL Le Levant
001 and Others against the Commission of the European
Communities

(Case T-34/02)

(2002/C 109/109)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 February 2002 by the company
EURL Le Levant 001 and Others, represented by Pierre Kirch,
lawyer, with an address for service in Luxembourg.

The applicants claim that the Court should:

— annul the Commission’s decision of 25 July 2001 on
the State aid implemented by France in the form of
development assistance for the cruise vessel ‘Le Levant’,
built by Alstom Leroux Naval for operation in Saint-
Pierre-et-Miquelon (State aid C 74/99 — France), publi-
shed in OJ L 327 of 12 December 2001, p. 37;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants in this case are one-man undertakings with
limited liability and the persons who formed those undertak-
ings. Those persons have invested, through a one-man limited
liability undertaking (EURL),
‘Le Levant’. The
investment could be inferred from their taxable income, in
accordance with the French ‘Loi Pons’ (1). The applicants
are contesting the Commission’s decision declaring those
companies to be recipients of State aid in consequence of the
construction of the vessel ‘Le Levant’.

in the vessel

In support of their action, the applicants assert that the
Commission has exceeded its powers by adopting a decision
the effect of which is to require a Member State to recover
from private individuals, and not from undertakings within
the meaning of Community law, the amount of the State aid.

The applicants further maintain that the Commission has
infringed their rights of defence and their right to a fair
hearing, by not allowing them effectively to submit their
observations prior to the adoption of the decision.

Next, the applicants deny that they are undertakings within
the meaning of Article 87(1) of the EC Treaty. In the applicants’
view, they are merely private investors who have made a

financial investment exclusively in order to benefit from a tax
break. The applicants also maintain that the Commission has
infringed Council Directive 90/684/EEC on aid to shipbuilding.
They submit that Article 4(7) of that directive can apply only
to shipyards or ship operators, and in no circumstances to
private investors.

In addition, the applicants plead infringement of the principles
of the protection of legitimate expectations and legal certainty
and failure to comply with the obligation to provide a
statement of reasons. Moreover, by ordering the recovery of
the alleged aid when that is contrary to the abovementioned
general principles of
the Commission has infringed
law,
Article 14 of Council Regulation No 659/1999 (2).

According to the applicants,
the contested decision also
contains manifest errors of assessment and is based on material
inaccuracies.

In addition, the applicants plead infringement of Article 153(2)
of the EC Treaty, in that the Commission does not take into
account the interests of the applicants, who are consumers of
financial services. Lastly, they claim that the Commission has
infringed Article 2 of Regulation No 69/2001 (3) by failing to
apply the de minimis rule.

(1) Rectifying Finance Law No 86-824 of 11 July 1986, published in
JORF (Official Journal of the French Republic) of 12 July 1986,
p. 8688.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83 of 27.3.1999, p. 1).

(3) Commission Regulation (EC) No 69/2001 of 12 January 2001 on
the application of Articles 87 and 88 of the EC Treaty to de
minimis aid (OJ L 10 of 13.1.2001, p. 30).

Action brought on 13 February 2002 by ALITALIA
against the Commission of the European Communities

(Case T-35/02)

(2002/C 109/110)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 13 February 2002 by ALITALIA,
represented by Guido Alpa, Mario Siragusa, Gian Michele
Roberti, Giuseppe Scassellati and Francesca Maria Moretti,
lawyers.

C 109/58

EN

Official Journal of the European Communities

4.5.2002

The applicant claims that the Court should:

— order the Commission to pay compensation for the
damage, to be quantified or in such sum as the Court
shall think fit, caused to Alitalia by the first decision and
the conditions imposed thereby and by the fact of that
measure having been reproduced by means of the second
decision;

— order the Commission to pay interest on the amount
referred to above for the period up to the date of
payment;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, Alitalia, the same applicant as in Cases
T-296/97 (1) and T-301/01 (2), is seeking an order requiring
the defendant to pay compensation for the damage allegedly
caused by Commission Decision 97/789/EC of 15 July 1997
concerning the recapitalisation of the applicant company and
by the conditions imposed thereby, which it claims to have
been reproduced, following the annulment of that first decision
by the judgment of the Court of First Instance of 12 July
2000 in the abovementioned Case T-296/97, by Decision
2001/723/EC of 18 July 2001.

Sanpaolo IMI spa, represented by Alberto Santa Maria, Claudio
Biscaretti di Ruffia, Giuseppe Pizzonia and Marcello Valenti,
lawyers.

The applicant claims that the Court should:

— annul the contested decision, issued on 11 December
2001 by the Commission of the European Communities,
on the grounds that it infringes essential procedural
requirements and/or is unfounded, contradictory and/or
lacking in a statement of reasons in accordance with
the EC Treaty in conjunction with
Article 253 of
Articles 87 and 77 and with Council Regulation
No 659/1999, as expounded in the application;

— alternatively, annul the decision in question wholly or in
part pursuant to the second paragraph of Article 230 of
the EC Treaty, inasmuch as it infringes or misapplies
Article 87(1) or, in the further alternative, Article 87(3)(b)
or (c) of the EC Treaty, as expounded in the application;

— in the still further alternative, in the inconceivable event
that the Court finds that the articles of Law No 461 of
23 December 1998 and of Legislative Decree No 153 of
17 May 1999, to which the contested decision relates,
constitute a system of State aid which is incompatible
with the common market, rule that the contested decision
of the Commission cannot have any retroactive effect;

— subject to the reservation of all rights.

The pleas of illegality are the same as those advanced in the
abovementioned cases.

Pleas in law and main arguments

(1) Judgment of the Court of First Instance of 12 December 2000 in
Case T-296/97 Alitalia v Commission [2000] ECR II-3871.
(2) Case T-301/01 Alitalia v Commission (OJ C 44 of 16.2.2002,

p. 24).

The pleas in law and main arguments are the same as those
put forward in Case T-36/02 ABI v Commission.

Action brought on 21 February 2002 by Banca Sanpaolo
IMI spa against the Commission of the European Com-
munities

(Case T-37/02)

(2002/C 109/111)

(Language of the case: Italian)

Action brought on 21 February 2002 by Banca Intesabci
Spa against the Commission of the European Communi-
ties

(Case T-39/02)

(2002/C 109/112)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by Banca

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by Banca
Intesabci Spa, represented by Alberto Santa Maria, Claudio
Biscaretti di Ruffia, Giuseppe Pizzonia and Marcello Valenti,
lawyers.