Case T-53/08: Action brought on 31 January 2008 — Italy v Commission
Date: 2008-01-31
Institutions: Court of First Instance
Subjects: Italy, State aid, action for annulment (EU), control of State aid, energy industry, preferential price

29.3.2008

EN

Official Journal of the European Union

C 79/33

Pleas in law and main arguments

Form of order sought

Absolute failure to state reasons and reasons which are, inter
alia, manifestly illogical, inconsistent and confused, absence of
preliminary enquiries, failure to rule on a fundamental fact of
the present case and infringement of the obligation of clare loqui,
misrepresentation and distortion of the facts (in particular, para-
graphs 10, 12, 26 to 38 inclusive and 42 to 46 inclusive of the
contested order).

Erroneous interpretation, misinterpretation and misapplication
of the general principles and provisions of law and Community
case-law on compensation for damage (in particular, paragraphs
42 to 46 of the contested order).

— annul Commission decision C(2007) 5400 final of
20 November 2007, notified on 21 November 2007,
concerning State aid No C 36/A/2006 (ex NN 38/2006)
which Italy paid to ThyssenKrupp, Cementir and Nuova
Terni Industrie Chimiche.

Pleas in law and main arguments

Manifest lack of logic of the judgment and ruling of the Civil
Service Tribunal on costs as well as unreasonableness, absolute
failure to state reasons,
inconsistency, misrepresentation and
distortion of the actual facts, arbitrariness (in particular, para-
graphs 49 and 50 of the contested order).

the State aid paid by Italy to
By the contested decision,
ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche,
and that granted but not yet paid to the same beneficiaries, in
the form of favourable tariff conditions for the supply of electri-
city, were declared incompatible with the common market.

Absolute failure to state the reasons for the decision which is
the subject-matter of the complaint in the action at first instance
(in particular, paragraphs 26 to 38 inclusive of the contested
order).

Misrepresentation and distortion of the facts and related proce-
dural errors which are so serious that they infringe irremediably
the rights of the applicant to a defence and infringe essential
procedural requirements such as to invalidate irremediably the
contested order (in particular, paragraph 24 of the contested
order).

Infringement of the rules concerning a fair trial, with particular
reference to the provisions of
the European Convention on
Human Rights (paragraphs 24 and 26 to 38 inclusive of the
contested order).

Action brought on 31 January 2008 — Italy v Commission

(Case T-53/08)

(2008/C 79/64)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, Avvo-
cato dello Stato)

Defendant: Commission of the European Communities

In support of its claims, the applicant relies on the following
pleas:

(1) Infringement of Articles 87(1) and 88(3) EC and erroneous
reconstruction of the facts. In its decision the Commission
failed to consider that the contested measure adopted by the
Italian State did not constitute State aid since it did not
the measure
advantage.
confer an economic
extending the preferential electricity tariffs to be applied to
the companies in the proceedings, the assignee of Terni
SpA, was owing as a supplement
to the expropriation
compensation granted previously to Terni SpA on account
legal provisions adopted subsequently
of
involved a longer term in respect of the concession for the
production of the expropriated energy.

the fact

In fact

that

(2) Infringement of Articles 87 and 88(3) EC and erroneous
reconstruction of the facts. In its decision the Commission
failed to consider that the contested measure adopted by the
Italian State did not constitute State aid since the aid was
not granted through State resources. In fact the cost of the
measure is borne by the other users of the energy supply
service.

(3) Infringement of essential procedural requirements in relation
to absence of preliminary enquiries and infringement of the
rights of the defence. In its decision the Commission stated
that the results of an economic study to assess all the sacri-
fices imposed on Terni in consequence of the expropriation
and all the benefits obtained by that company by way of
compensation were irrelevant because the suitability of the
compensation mechanism can be assessed only ex ante,
namely, at the time of the expropriation. The study was
in accordance with previous Commission
carried out
in the
guidance. The Commission,
abstract a study requested by it previously was irrelevant,
should have carried out
further preliminary enquiries,
reopening the discussion concerning the methods of
carrying out the study.

taking the view that