Case T-344/02: Action brought on 21 November 2002 by Air One S.p.A. against the Commission of the European Communities
Date: 2003-02-08
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), aid for restructuring, air transport, financial aid

8.2.2003

EN

Official Journal of the European Union

C 31/17

and territories of sugar sector products with EC/OCT cumu-
lation of origin (OJ 2000 L 246, p. 64) and secondly for
damages — the Court of First Instance (Third Chamber),
composed of M. Jaeger, President, K. Lenaerts and J. Azizi,
Judges; J. Plingers, Administrator, for the Registrar, has given a
judgment on 14 November 2002, in which it:

1. Orders that Cases T-332/00 and T-350/00 be joined for the

purposes of the judgment;

2. Dismisses the applications;

3. Orders each of the applicants to bear its own costs, and pay
those incurred by the Commission in the case it has brought,
including, in the case of the applicant in Case T-350/00, those
incurred by it in the proceedings for interim relief;

4. Orders the interveners to bear their own costs.

( 1) OJ C 4 of 6.1.01 and C 45 of 10.2.01.

Pleas in law and main arguments

The applicant, a public limited company whose seat
is
in Athens, has as its business the production, packaging,
standardisation and preservation of, and trade in, agricultural
products. It was founded pursuant to an improvement plan
drawn up under Regulations (EEC) No 355/77 and No 866/90
for co-financing by the European Community and the Greek
State.

The applicant submits that,
following the adoption of a
measure relating to the market by the Greek authorities, it was
reduced to an extremely poor financial position and its
operation became problematic.

By its application, it accuses the Commission of inaction and
delaying tactics since, notwithstanding the applicant’s repeated
requests and its approaches to various Community authorities,
the Commission failed:

— to abolish the Community financial assistance under

Article 23 of Regulation No 4253/88 (1);

— to initiate, against the Hellenic Republic, the procedure
under Article 226 EC for breach of Community law.

Action brought on 28 October 2002 by the company
Tipopiitiria Thivas A.E. — Viomikhania Siskevasias Tipo-
piisis kai Sintirisis Agrotikon Proïonton against the Com-
mission of the European Communities

In this connection, the applicant submits that the Commission
infringed Regulation No 4253/88, exceeded the limits of
its discretion and offended against the principle of equal
treatment.

(Case T-334/02)

(2003/C 31/25)

(Language of the Case: Greek)

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for
implementing Regulation (EEC)
No 2052/88 as regards coordination of the activities of the
different Structural Funds between themselves and with the
operations of
the European Investment Bank and the other
existing financial instruments (OJ No L 374, 31.12.1998, p. 1).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 October 2002 by the company
Tipopiitiria Thivas A.E. — Viomikhania Siskevasias Tipopiisis
kai Sintirisis Agrotikon Proïonton, whose seat is in Athens
(Greece), represented by Ioannis Stamoulis, of the Athens Bar,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— allow the present application challenging the failure
of the European Commission to abolish Community
assistance;

— declare that the European Commission has unlawfully
failed to abolish the Community financial assistance;

— order the European Commission to pay the costs.

Action brought on 21 November 2002 by Air One S.p.A.
against the Commission of the European Communities

(Case T-344/02)

(2003/C 31/26)

(Language of the case: Italian)

An action was brought before the Court of First Instance of
the European Communities on 21 November 2002 by the
abovementioned applicant, represented by G. Belotti, against
the Commission of the European Communities.

C 31/18

EN

Official Journal of the European Union

8.2.2003

The applicant claims that the Court should:

— annul the contested decision

to the payment of
take into
the third,
consideration certain consequences of the unsuccessful
outcome of the restructuring plan and of the infringement
of certain conditions.

it did not

(a)

both in so far as the Commission took formal notice
of the payment of the second tranche of aid to
Alitalia, which was authorised by Decision 97/789/
EC of 15 July
by
Decision 2001/723/EC of 18 July 2001, and decided
not to object to the payment of the third tranche;

1997 and

confirmed

— The aid used to cover Alitalia’s financial losses after the
restructuring plan had expired constituted unauthorised
new aid. In any event, it constituted a misuse of aid, since
it was used to cover financial losses occurring after the
end of the restructuring plan, that is to say for a use
which had not been authorised by the Commission.

(b)

and in so far as it established that the new recapitalis-
ation of Alitalia in the sum of EUR 1 432 million
notified by the Italian authorities on 29 and 30 April
2002 does not constitute State aid;

— in the alternative, annul the decision on one of the two

grounds mentioned above;

— order the defendant to pay the costs of the action in any

event.

Pleas in law and main arguments

By the contested decision, the Commission took formal notice
of the payment of the second tranche of aid by the Italian
Republic for the restructuring of Alitalia Linee Aeree Italiane
S.p.A., authorised by Decision 97/789/EC of 15 July 1997 and
confirmed by Decision 2001/723/EC of 18 July 2001, and
decided not to object to the payment of the third tranche. It
also decided that the new recapitalisation of Alitalia in the sum
of EUR 1 432 million does not constitute State aid.

In support of its claims the applicant makes the following
submissions:

— Infringement of Article 88(2) of the Treaty, in that as
Alitalia infringed at least three of the conditions for the
authorisation of aid, the Commission ought to have
allowed competing undertakings to submit observations
before it assessed the compatibility of the payment of the
second and third tranches of aid with the common
market.

in

of

the

— As regards the defendant’s determination that the new
recapitalisation
sum of
Alitalia
EUR 1 432 million notified by the Italian authorities on
29 and 30 April 2002 does not constitute State aid, it
should be stated, in particular in the light of the private
investor principle and the absence of analysis of the
prospects of profitability of the undertaking, that the
Commission erred in not considering the following
matters: notwithstanding the existence of option rights,
private shareholders in Alitalia did not subscribe to the
new increase in capital; private banks subscribed only
after the formal subscription of the State and the price of
the new shares was two-thirds of the price of the
contemporaneous increase in the capital subscribed
exclusively by the State by means of the second and third
tranches of aid for restructuring.

Action brought on 26 November 2002 by Quick Res-
taurants SA against Office for Harmonization in the
Internal Market (trade marks and designs) (OHIM)

(Case T-348/02)

(2003/C 31/27)

(Language of the case: French)

— Infringement and erroneous application of the Com-
munity guidelines on State aid for rescuing and restructur-
ing firms in difficulty, and a failure to state reasons in
that, in so far as the Commission decided to take notice
of the payment of the second tranche and not to object

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
26 November 2002 by Quick Restaurants SA, established in
Brussels, represented by Louis Van Bunnen, lawyer, with an
address for service in Luxembourg.