Case T-436/08: Action brought on 3 October 2008 — Studio Vacanze v Commission
Date: 2008-10-03
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), aid system, infringement of EU law, parliamentary procedure

C 301/58

EN

Official Journal of the European Union

22.11.2008

rights of authors and composers and, quite clearly, the societies
whose presence in the territory is well established are fully able
to satisfy that requirement.

Action brought on 3 October 2008 — Studio Vacanze v
Commission

By the second plea,
the applicant alleges infringement and
misapplication of Article 81 EC and the illogical nature of the
reasons stated in the Decision, in that, in its efforts to demon-
strate the practicability of multi-territory licence management
for the broadcasting of musical works via satellite or cable, or
over the internet, the Commission itself ultimately demonstrates
that the collecting societies do not engage in parallel behaviour.
The Commission's accusation is in fact invalidated by the exam-
ples that it cites itself of the grant by collecting societies of
licences covering a broader area than the territory in which an
individual society operates.

Parties

(Case T-436/08)

(2008/C 301/96)

Language of the case: Italian

By the third plea, the applicant alleges infringement and misap-
plication of Article 81 EC because,
the
Commission should find that there is concerted practice (which
the applicant denies), such a practice would have no restrictive
effect on competition in that territorial delimitations constitute
the necessary corollary of the exclusivity of the rights held by
authors and composers.

in the event

that

By the fourth plea, the applicant alleges that the Commission
has acted in breach of the audi alteram partem rule and in infrin-
gement of Article 253 EC in so far as it has failed to state
adequate reasons as regards the fact that the Commission did
not inform the societies of the essential factual evidence on
which, following its research into the market, it based its refusal
to accept the commitments proposed by SIAE.

alleges

fifth plea,

the applicant

infringement of
By the
Article 253 EC through failure to state adequate reasons for its
decision; breach of the principle of proportionality and of the
principle of legal certainty; and the contradictory and illogical
nature of the measures laid down in Article 4(2) of the Deci-
sion. The wholly indeterminate nature of the ‘review’ requested
from the collecting societies places SIAE unfairly in a situation
of uncertainty as regards the identification of measures which
are regarded by the Commission as sufficient to put an end to
the alleged concerted practice. Furthermore, given that
the
Commission expressly recognises that the fact of limiting the
licence to the territory of the other collecting society does not
amount to restriction of competition, it is manifestly incompa-
tible with that premiss to order the collecting societies to carry
out a bilateral review of the territorial delimitation in all their
licences for broadcasting via satellite or cable, or online, and,
thus, to provide the Commission with a copy of the review of
all those reciprocal representation agreements. Moreover, since
the Commission requires a ‘bilateral’ review of the territorial
delimitations, SIAE's full compliance with Article 4(2) of the
Decision is nevertheless beyond SIAE'S own decision-making
competence, since it is also subject to the independent views of
another 23 collecting societies.

Applicant: Studio Vacanze (Budoni,
Cannata, lawyer)

Italy)

(represented by: M.

Defendant: Commission of the European Communities

Forms of order sought

Principal forms of order sought:

— Annul the decision of the Commission of the European

Communities of 2 July 2008;

— Order the Commission to pay the costs of the proceedings.

Alternative form of order sought:

Annul Article 2(2) of the contested decision in so far as it
orders recovery of the aid found to be incompatible, together
with interest, as from the date on which the amounts were
made available to the recipients until the date of their actual
recovery.

Pleas in law and main arguments

The decision contested in the present case is the same as that at
issue in Case T-394/08 Regione Sardegna v Commission and Case
T-408/08 S.F. Turistico Immobiliare v Council and Commission.

The applicant relies on the following pleas in support of its
action:

— infringement of Article 16 of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed rules
for the application of Article 93 of the EC Treaty (1), in so
far as that provision authorises the opening of the formal
investigation procedure only in cases of ‘misuse of aid’ and
not for the ‘creation of unlawful aid’: it follows, according to
the applicant, that the entire formal investigation procedure
is invalid;

22.11.2008

EN

Official Journal of the European Union

C 301/59

the subject-matter of

— failure to state adequate reasons as regards the amendment
of
the
misuse of aid measure No 278/99, and the ‘extension’ which
led to the adoption of the contested decision;

the procedure opened for

— infringement of Article 88(2) EC in so far as the statement
in recital 74 of the decision, regarding the unlawful imple-
mentation of the aid in question, is outside the scope of that
provision;

— breach of the principle of transparency;

— failure to state adequate reasons as regards the principle of
the reasonable duration of the formal investigation proce-
dure;

— failure to state reasons as regards the recovery of the aid
already disbursed, having regard to the fact that this point
was also of particular importance in relation to the principle
of the protection of legitimate interests of third parties and
to the unreasonably lengthy duration of the proceedings;

— breach of the de minimis principle laid down in Commission
Regulation (EC) No 69/2001 of 12 January 2001 on the
application of Articles 87 and 88 of the EC Treaty to de
minimis aid (2).

(1) OJ L 83, 27.3.1999, p. 1.
(2) OJ L 10, 13.1.2001, p. 30.

submitted an application for aid under
before starting work on an initial
(Article 1 of the Decision);

the scheme
investment project’

(b) orders that

the
‘[t]he Italian Republic shall
incompatible aid granted under the scheme referred to
in Article 1 from the recipients’ (Article 2(1) of the Deci-
sion);

recover

(c) orders that ‘[t]he The Italian Republic shall cancel all
outstanding payments of aid under the scheme referred
to in Article 1 with effect from the date of adoption of
this Decision’ (Article 2(4) of the Decision).

— Order the Commission to pay the costs of

the present

proceedings.

Pleas in law and main arguments

The contested decision in the present case is the same as that at
issue in Case T-394/08 Regione Sardegna v Commission, Case
T-408/08 S.F. Turistico Immobiliare v Council and Commission and
Case T-436/08 Studio Vacanze v Commission.

The pleas in law and main arguments are similar to those put
forward in those cases.

Action brought on 3 October 2008 — Timsas v
Commission

(Case T-453/08)

(2008/C 301/97)

Language of the case: Italian

Action brought on 6 October 2008 — Grand Hotel Abi
d'Oru v Commission

(Case T-454/08)

(2008/C 301/98)

Language of the case: Italian

Parties

Parties

Applicant: Grand Hotel Abi d'Oru SpA (Olbia, Italy) (represented
by: D. Dodaro and S. Cianciullo, lawyers)

Applicant: Timsas Srl (Arezzo, Italy) (represented by: D. Dodaro,
S. Pinna and S. Cianciullo, lawyers)

Defendant: Commission of the European Communities

Defendant: Commission of the European Communities

Forms of order sought

— Annul the Decision in so far as it:

(a) states that ‘[t]he [S]tate aid granted in accordance with
Regional Act No 9 of 1998, unlawfully put into effect
by Italy in Resolution (deliberazione) No 33/6 and in the
is incompatible with the
first call
aid
the
common market unless

for applications,

recipient of

the

Forms of order sought

— Annul the Decision in so far as it:

(a) states that ‘[t]he [S]tate aid granted in accordance with
Regional Act No 9 of 1998, unlawfully put into effect
by Italy in Resolution (deliberazione) No 33/6 and in the
is incompatible with the
first call
aid
the
common market unless
the
the scheme
submitted an application for aid under
before starting work on an initial
investment project’
(Article 1 of the Decision);

for applications,

recipient of