CELEX: 62009CJ0318
Language: en
Date: 2011-12-21
Title: Judgment of the Court (Sixth Chamber) of 21 December 2011.#A2A SpA, formerly ASM Brescia SpA v European Commission.#Appeals - State aid - Aid granted to public utilities - Tax exemptions - Decision declaring the aid scheme incompatible with the common market - Action for annulment - Admissibility - Standing - Legal interest - Article 87 EC - Concept of 'aid' - Article 88 EC - Concept of 'new aid' - Article 10 EC - Duty of loyal cooperation - Regulation (EC) No 659/1999 - Articles 1 and 14 - Lawfulness of a recovery order - Principle of legal certainty - Duty to state reasons.#Case C-318/09 P.

Judgment of the Court (Sixth Chamber) of 21 December 2011 – A2A, formerly ASM Brescia v Commission
      (Case C-318/09 P)
      Appeal – State aid – Aid granted to public utilities – Tax exemptions – Decision declaring the aid scheme incompatible with the common market – Action for annulment – Admissibility – Locus standi – Legal interest in bringing proceedings – Article 87 EC – Concept of ‘aid’ – Article 88 EC – Concept of ‘new aid’ – Article 10 EC – Duty to cooperate in good faith – Regulation (EC) No 659/1999 – Articles 1 and 14 – Lawfulness of a recovery order – Principle of legal certainty – Duty to state reasons
      1.                     Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision
            prohibiting a sectoral aid scheme – Action brought by an undertaking having received individual aid granted under that scheme
            and that must be recovered – Admissibility (Art. 230, fourth para., EC) (see paras 55-60)
      2.                     Actions for annulment – Legal interest in bringing proceedings – Condition – Action capable of procuring an advantage for
            the party bringing it – Commission decision on the recovery of State aid (see paras 68-70)
      3.                     Appeals – Pleas in law – Inadequate statement of reasons – Reliance by the Court of First Instance on implied reasoning –
            Whether permissible – Conditions (Art. 225 EC; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 97)
      4.                     Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the
            facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court
            of Justice, Art. 58, first para.) (see paras 103-105)
      5.                     Appeals – Pleas in law – Plea directed against a ground of the judgment not necessary in order to support the operative part
            – Plea in law ineffective (see para. 109)
      6.                     Appeals – Pleas in law – Distortion of national law relied on as evidence – Admissibility (Art. 225 EC; Statute of the Court
            of Justice, Art. 51, first para.) (see para. 125)
      7.                     Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissibility (Rules of Procedure
            of the Court of Justice, Arts 42(2) and 118) (see para. 131)
      Re: 
      
         Appeal brought against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) of 11 June 2009
                  in Case T‑189/03 
               
               ASM Brescia 
               v 
               Commission
                by which that court dismissed the action brought for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of
                  5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority
                  public capital holding (OJ 2003 L 77, p. 21).
               
            Operative part
      The Court: 
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the main appeal and the cross-appeal;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders A2A SpA to pay the costs of the main appeal;
               
            
         
                  3.
               
               
                  
               
               
                  	Orders the European Commission to pay the costs of the cross-appeal.