Case C-174/13 P: Appeal brought on 9 April 2013 by Axitea SpA, formerly La Vigile San Marco SpA, against the order of the General Court (Fourth Chamber) delivered on 22 January 2013 in Case T-262/00 La Vigile San Marco SpA v European Commission
Date: 2013-04-09
Institutions: Court of Justice
Subjects: Italy, State aid, proof, reimbursement of aid, restriction on competition, trading operation








C_2013207EN.01000401.xml










20.7.2013   


EN


Official Journal of the European Union


C 207/4





Appeal brought on 9 April 2013 by Axitea SpA, formerly La Vigile San Marco SpA, against the order of the General Court (Fourth Chamber) delivered on 22 January 2013 in Case T-262/00 La Vigile San Marco SpA v European Commission
(Case C-174/13 P)
2013/C 207/05
Language of the case: Italian

Parties


Appellant: Axitea SpA, formerly La Vigile San Marco SpA (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: Italian Republic, European Commission

Form of order sought







—


Set aside and/or vary the order of the General Court (Fourth Chamber) delivered in Case T-262/00, and order the Commission to pay the costs





Pleas in law and main arguments

In support of its appeal, the appellant alleges errors of law in the application of the principles outlined by the Court of Justice in its judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission, regarding (i) the duty to state the reasons for decisions of the Commission relating to State aid and (ii) the allocation of the burden of proof concerning the conditions laid down in Article 107(1) TFEU.
In the order that is the subject of the present appeal, the General Court did not comply with the judgment delivered by the Court of Justice on 9 June 2011 in Comitato ‘Venezia vuole vivere’, in so far as that judgment states that a decision of the Commission ‘must contain in itself all the matters essential for its implementation by the national authorities’. However, even though the decision at issue in the present case lacked the matters essential for its implementation by the national authorities, the General Court failed to find any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.
On the basis of the principles outlined by the Court in its judgment in Comitato ‘Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) TFEU are met. In the present case, however, in the contested decision the Commission failed to clarify the ‘modalities’ of any such verification; consequently, since it did not have available to it, at the time when the aid was to be recovered, the information necessary to show that the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraph 351 et seq.) — decided to reverse the burden of proof, in breach of Community case-law. According to the Italian legislature, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That presumption is clearly contrary to the principles outlined by the Court in Comitato ‘Venezia vuole vivere’.