Case T-265/04: Action brought on 24 June 2004 by Adriatica di Navigazione S.p.A. against the Commission of the European Communities
Date: 2004-09-25
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), control of State aid, freedom to provide services, maritime transport

C 239/26

EN

Official Journal of the European Union

25.9.2004

alternatively, hold that the European Community has become
liable to her by the adoption, even if lawful, and then applica-
tion of Article 5 of the Community Customs Code, having
caused her to suffer an abnormal and special loss;

and proportionality. Finally, the applicant alleges a breach of
the right to respect of property in that the abolition of the
monopoly renders the office of ship's agent non-transferable
and entirely worthless.

order the Council and the Commission jointly and severally to
pay to her damages of EUR 60 510 or, alternatively, of
EUR 47 829 together with interest in both cases at the legal
rate from the date on which the present action was brought;

order the Council and the Commission jointly and severally to
pay the costs.

The applicant claims, in the alternative, that the Community is
liable on a no-fault basis given the abnormal and special nature
of the loss suffered. According to the applicant, the harm is
abnormal in that the loss of the economic value of the office
and of the profit margin exceeds normal economic risks and is
special in that ship's agents constitute a clearly distinct category
of traders.

Pleas in law and main arguments

The applicant states that, following the commencement by the
Commission of a Treaty infringement procedure against the
French State, France has, in order to bring French law into line
with Article 5 of Regulation No 2913/92 (1), repealed the
monopoly held by ship's agents, of whom the applicant is one,
to deal with the customs authorities. According to the appli-
cant, the withdrawal of that monopoly follows directly from
the application of Article 5 of Regulation No 2913/92 and is
therefore directly attributable to the European Community.

The applicant's main submission is that the adoption of Article
5 of Regulation No 2913/92 constitutes an unlawful act for
which the Community is liable.

Firstly, the applicant claims that that article fails to have regard
to the derogatory provisions of Article 45 of the EC Treaty to
the extent that the profession of ship's agent, by application of
customs legislation,
is involved in the exercise of public
authority.

The applicant then alleges a breach of the principles of legal
certainty and the protection of legitimate expectations. The
applicant claims, on one hand, that Article 5 of Regulation No
2913/92 refers to the concept of ‘representation at customs’
which is different from that of ‘dealing with the customs autho-
rities’, the latter being essentially carried out by ship's agents.
An interpretation by analogy of that article would, according to
the applicant, be contrary to the principle of legal certainty. On
the other hand, the applicant alleges a violation of her legiti-
mate expectations, arising from the absence of any transitional
measure and from the fact that French ship's agents were the
only ones in the Community to be constantly excluded from
the earlier liberalisation measures.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).

Action brought on 24 June 2004 by Adriatica di Naviga-
zione S.p.A. against the Commission of the European
Communities

(Case T-265/04)

(2004/C 239/57)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance on 24
June 2004 by Adriatica di Navigazione S.p.A., represented by
Gian Michele Roberti, Alessandra Franchi and Guido Bellitti.

The applicant claims that the Court of First Instance should:

annul the contested decision in so far as it considers the subsi-
dies in respect of public-service obligations made to Adriatica
to be aid for the purposes of Article 87 of the Treaty and classi-
fies those measures as new aid;

or annul Article 1(2) of the contested decision;

Furthermore, the applicant alleges a breach, constituted by the
absence of transitional measures, of the principles of equality

or, as a subsidiary claim, annul Article 1(3) of the contested
decision in so far as it requires Italy to recover the aid together
with interest;

25.9.2004

EN

Official Journal of the European Union

C 239/27

order the Commission to pay the costs.

Pleas in law and main arguments

By this application the company Adriatica di Navigazione
S.p.A. challenges, pursuant to the fourth paragraph of Article
230 of the EC Treaty, the decision of the European Commis-
sion of 16 March C(2004) 470 concerning State aid granted by
Italy to the shipping companies Adriatica, Caremar, Siremar,
Saremar and Toremar.
the applicant asks the
In particular,
Court of First Instance to annul the decision under challenge
inasmuch as it considers the subsidies in respect of public-
service obligations made to Adriatica to be aid for the purposes
of Article 87 of the Treaty, and classifies those measures as
new aid.

In support of
grounds of challenge.

its action,

the applicant puts forward three

By the first, the applicant alleges that the Commission made a
twofold error of assessment. First, in its view, the Commission's
decision is vitiated because the Commission wrongly classified
the subsidies granted by the Italian State to the shipping
companies of the Gruppo Tirrenia to offset the costs of their
public-service obligations (P-S.Os) as aid for the purposes of
Article 87 EC. As a result of this mistaken classification the
decision under challenge infringes (a) the sphere of discretion
possessed by the authorities of the Member States in connec-
tion with the identifying and funding of P-S.Os, and (b) Article
4(3) of Regulation 3577/92 (1). In the second place, Adriatica
maintains that in any case the Commission fell into an error of
assessment in classifying those subsidies as new aid. In this
regard, the applicant points out first of all that the Commission
failed to take into consideration that the relevant legislation
and the public-service Conventions of the regional companies
of the Gruppo Tirrenia had been notified to the Commission
and had been authorised by the latter either expressly or by
implication.

By its second plea, the applicant challenges the errors of assess-
ment that it claims the Commission made in its contested deci-
sion in finding that
the scheme of subsidies for Adriatica
between 1992 and 1994 was incompatible [with the common
market] because Adriatica was responsible for anti-competitive
conduct prohibited by Article 81 EC. On this point, the appli-
cant notes that that assessment is incorrect since the Commis-
sion ought first of all to have ascertained whether there was
any causal connection between the particular case which
constitutes contravention of competition and the case of the
aid measures, and to have recognised that there was, in the
circumstances, no such causal connection.
the
applicant stresses that, for the purposes of ascertaining whether
there existed such a connection, the mere coincidence of the
subject-matter of the contravention of competition and the
abovementioned subsidies was quite irrelevant. Here, the appli-
cant also alleges breach of the obligation to give reasons laid
down in Article 253 EC.

In addition,

Finally, the applicant's third plea in law claims that the decision
under challenge is unlawful inasmuch as it orders that the aid
given to Adriatica for the period from January 1992 to July
1994 should be recovered, contrary to the general principles of
the protection of legitimate expectations and of the proportion-
ality of administrative action.

(1) Council Regulation (EEC) No 3577/92 of 7 December 1992
applying the principle of freedom to provide services to maritime
transport within Member States (maritime cabotage)
(OJ 1992 L
364, p. 7).

Removal from the Register of Case T-14/00 (1)

(2004/C 239/58)

(Language of the case: Dutch)

By order of 4 May 2004 the President of the Second Chamber
(Extended Composition) of the Court of First Instance of the
European Communities has ordered the removal
from the
Register of Case T-14/00, C.A.V. Ulestraten-Schimmert-Huls-
berg and Others, supported by the Kingdom of the Netherlands
v Commission of the European Communities.

(1) OJ C 135, 13.5.2000.

Removal from the Register of Case T-236/99 (1)

(2004/C 239/59)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber
(Extended Composition) of the Court of First Instance of the
European Communities has ordered the removal
from the
Register of Case T-236/99, Direcks Service Station Bocholtz
B.V., supported by the Kingdom of the Netherlands v Commis-
sion of the European Communities.

(1) OJ C 47, 19.2.2000.