Case T-64/08: Action brought on 6 February 2008 — Nuova Terni Industrie Chimiche v Commission
Date: 2008-02-06
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), control of State aid, energy industry

12.4.2008

EN

Official Journal of the European Union

C 92/41

Pleas in law and main arguments

The pleas and main arguments are the same as those relied on
in Case T-62/08 ThyssenKrupp v Commission.

Action brought on 13 February 2008 — Spain v
Commission

(Case T-65/08)

(2008/C 92/82)

Language of the case: Spanish

Action brought on 6 February 2008 — Nuova Terni
Industrie Chimiche v Commission

(Case T-64/08)

(2008/C 92/81)

Language of the case: Italian

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad)

Defendant: Commission of the European Communities

Parties

Applicant: Nuova Terni Industrie Chimiche SpA (Milan,
Italy)
(represented by: T. Salonico, G. Pellegrino, G. Pellegrino, G,
Barone, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision of 5 December 2007 in rela-
to Article 21 of Council
tion to a procedure pursuant
Regulation (EC) No 139/2004 on the control of concentra-
tions between undertakings (Case No Comp/M.4685 —
Enel/Acciona/Endesa), and

Form of order sought

— Order the Commission to pay the costs.

— declare that the contested decision is unlawful and annul
that decision in its entirety inasmuch as it regards as State
aid the contested measure, which in fact constitutes a lawful
continuation of
the measure by which the Italian State
granted compensation to Terni SpA (and its assignees) for
the expropriation of its electricity plants which occurred in
1962-63;

— order the defendant to pay the costs of the proceedings;

— in the alternative, annul the decision insofar as it:

(a) states

that

Italy

State
ThyssenKrupp, Cementir and Nuova Terni
Chimiche in breach of Article 88(3) of the EC Treaty;

unlawfully

to
aid
Industrie

paid

(b) states that

there are amounts to be recovered from
Industrie

ThyssenKrupp, Cementir and Nuova Terni
Chimiche; and consequently

(c) orders Italy to recover

those amounts plus interest

without delay;

— in the further alternative, annul

the contested decision
insofar as it orders Italy to recover the State aid plus interest
without delay, since that recovery infringes the general prin-
ciple of the protection of legitimate expectations.

Pleas in law and main arguments

The pleas and main arguments are the same as those relied on
in Case T-62/08 ThyssenKrupp v Commission.

Pleas in law and main arguments

The present action is brought against Commission Decision
C(2007) 5913 Final of 5 December 2007 in relation to a proce-
dure pursuant to Article 21 of Regulation (EC) No 139/2004 (1)
(Case No COMP/M.4685 Enel/Acciona/Endesa). In the contested
decision the Commission found that the applicant had infringed
Article 21 of Regulation No 139/2004 in subjecting the acquisi-
tion of joint control over Endesa, by Enel and Acciona, to a
series of conditions, given that those conditions are incompa-
tible with Articles 28, 43 and 56 EC, and thereby unduly inter-
fere with the exclusive competence of the Commission to rule
on a concentration at the Community level. Furthermore, the
defendant forced the applicant to withdraw those conditions
found to be incompatible with Community law.

In support of its claims, the applicant alleges, first, that the
Commission lacks the competence to adopt the contested deci-
sion on the basis of the procedure pursuant to Article 21 of
Regulation No 139/2004. According to the applicant, where the
Commission takes the view that a Member State has infringed
Article 21 of Regulation No 139/2004, it should initiate infrin-
gement proceedings against that Member State on the basis of
Article 226 EC.

the applicant claims that

Second,
the contested decision is
vitiated by a lack of reasoning in that the Commission did not
examine the grounds of public security on which the Spanish
Government relied, as laid down in Article 21(4) of Regulation
No 139/2004, to adopt measures in relation to the public bid
by Enel and Acciona for the purchase of Endesa.