Case T-290/06: Action brought on 9 October 2006 — Italian Republic v Commission
Date: 2006-12-16
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), advance payment, aid system, exchange of information, structural expenditure

16.12.2006

EN

Official Journal of the European Union

C 310/21

Pleas in law and main arguments

Action brought on 9 October 2006 — Italian Republic v
Commission

By its decision of 11 August 2006, the Commission found the
applicant, under Article 93(1)(f) of the Financial Regulation (1),
to be in serious breach of three contracts concluded with Euro-
stat relating to technical cooperation in the sphere of statistics
(PHARE programme), which was the result of its refusal to
make available to the Commission information allowing an
audit of the performance of the contracts in issue. Furthermore,
the contested decision states that the Commission reserves the
right to seek the enforcement of the contractual provisions
which have not been applied, by all appropriate means,
including by way of legal proceedings, and,
if necessary, to
recover the sums which are established as being payable.

In support of its application for the annulment of the contested
decision, the applicant puts forward three pleas in law.

The first plea relates to an alleged misuse of powers, analysed
from the perspective of a misuse of procedure, to the extent
that the contested decision is not subject to the particular
procedures for dispute resolution laid down by each contract
concluded by the applicant with the Commission and based on
the application of Article 57 of Financial Regulation No
1605/2002, and substitutes for those procedures the unilateral
method of a decision based on Article 93(1)(f) of that regu-
lation. The applicant maintains that the Commission misuses
the procedure laid down in Article 93(1)(f) given the article's
to
primary objective which is, according to the applicant,
exclude tenderers who are declared to be in serious breach of
contract
in an earlier procurement procedure from partici-
pating in a later procedure, and terminates contracts which
each lay down different methods of dispute resolution by deter-
mining the competent courts and the law which applies to
those contracts.

The second plea relied on by the applicant is based on defects
in reasoning. The applicant claims that the reasons for the
contested decision are not properly stated either in law, in that
the decision contains inadequate reasoning to the extent that it
applies, in the contractual domain, a provision relating to the
sound management of Community public procurement, or in
the applicant made by the
fact,
Commission are without
the applicant having
shown a willingness to cooperate with the audit services of the
Commission.

the criticisms of

foundation,

in that

In its third plea, the applicant claims that the Commission
made a manifest error of assessment to the extent that the
contested decision states the facts alleged against the applicant
without first characterising them as a serious breach of contract
by following the contractual procedures under Article 57(2) of
Regulation No 1605/2002.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).

(Case T-290/06)

(2006/C 310/42)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato
di Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Memorandum No 06863 of 27 July 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. Programme POR Puglia (No CCI
1999 IT 161 PO 009)

— annul Memorandum No 07231 of 3 August 2003 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. DOCUP Toscana Ob. 2 (No CCI
2000 IT 162 DO 001)

— annul Memorandum No 07248 of 3 August 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
certification and the intermediate statement of expenses and
the claim for payment. Ref. DOCUP Veneto Ob. 2 2000-
2006 (No CCI 2000 IT 162 DO 005)

— annul Memorandum No 07473 of 10 August 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount
requested. Ref. PON Sviluppo Imprenditoriale
Locale 2000-2006 (No CCI 1999 IT 161 PO 002)

— annul Memorandum No 07755 of 22 August 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. POR Campania 2000-2006 (No CCI
1999 IT 161 PO 007)

C 310/22

EN

Official Journal of the European Union

16.12.2006

— annul Memorandum No 07768 of 23 August 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. POR Campania 2000-2006 (No CCI
1999 IT 161 PO 007)

— annul Memorandum No 08861 of 20 September 2006 of
the European Commission, Directorate-General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. POR Programme Sardinia 2000-
2006 (No CCI 1999 IT 161 PO 010)

— annul all related and prior acts and, consequently, order the
the European Communities to pay the

Commission of
costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
on in Case T-345/04 Italian Republic v Commission (1)

(1) OJ C 262, 23.10.2004, p. 55.

Action brought on 18 October 2006 — Operator ARP v
Commission

(Case T-291/06)

(2006/C 310/43)

Language of the case: Polish

Parties

Claimant: ‘Operator ARP’ Sp. z o.o. (represented by: J. Szyma-
nowska, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare partially invalid the Commission decision of 5 July
2005 in Case No C 20/04 (ex. NN 25/04) concerning State
aid for the benefit of Huta Częstochowa S.A., that is to say,
set aside Article 3(2) of that decision in so far as it obligates
Poland to take all requisite steps to recover from Operator
Sp. z o.o. the State aid granted to Huta Częstochowa S.A.
in a manner inconsistent with the common market;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The claimant seeks a declaration of invalidity in regard to the
European Commission decision of 5 July 2005 in State aid

Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares
incompatible with the common market the aid which Poland
accorded to Huta Częstochowa S.A. over the period from 1997
to May 2002 in the form of operating aid and aid for employ-
ment restructuring. The decision was notified to the claimant
on 21 August 2006. In Article 3(2) of the contested decision
the Commission imposed an obligation on Poland to take all
requisite steps to recover the wrongfully granted aid from the
undertakings named in that provision, which include the clai-
mant. Pursuant to that decision, all the undertakings mentioned
in Article 3(2) are jointly and severally liable for the recovery
of that aid, which is to be effected without delay and in accord-
is
ance with the procedures under national
payable in respect of the entire period from the date of receipt
of the aid up to the date on which it is actually repaid,
in
accordance with the provisions contained in Chapter V of
Commission Regulation (EC) No 794/2004. (1)

Interest

law.

In its claim that the contested decision is invalid, the claimant
states that it is not itself a beneficiary of the aid granted to
Huta Częstochowa S.A. over the period from 1997 to 2002,
and therefore cannot be a debtor jointly and severally liable for
the return of the aid, with the result, according to the claimant,
that the obligation placed on Poland to take all requisite steps
to recover that aid from the claimant serves no purpose.

In support of its action, the claimant raises the following heads
of complaint:

— Infringement of the rights of defence through breach of
Article 88 EC by reason of defective compliance with the
obligation to enable interested parties to set out their views
in the framework of the formal
investigative procedure
relating to the aid in question. The claimant submits that,
as it did not take part in the formal investigative procedure
conducted by the Commission, it did not have an opportu-
nity to set out its views or submit legal argument in the
context of that procedure, which would, in its view, have
led the Commission to draft differently the operative part of
the decision with regard to the definition of the group of
aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from
that group);

— Breach of Article 253 EC, that is to say,

in that

the decision are terse and incoherent

lack of proper
reasoning for the decision. The claimant submits that, inas-
much as it is named as a beneficiary of the aid, the grounds
of
the
Commission, in those grounds, does not treat the claimant
as an individual capable of being recognised as a beneficiary
of the aid, but at the same time refers to it in the operative
part as an individual obligated to return the aid. The clai-
mant also points out that the contested decision fails to cast
light on the factual circumstances concerning the aid
granted to Huta Częstochowa in a manner, according to the
decision, at variance with the common market; in particu-
lar, the decision does not contain any analysis, within the
context of an extension of the group of beneficiaries, of the
issue of a possible transfer of benefits accruing from the aid
obtained in favour of individuals assuming the assets and
liabilities of Huta Częstochowa;