CELEX: C1997/094/39
Language: en
Date: 1997-03-22 00:00:00
Title: Action brought on 23 December 1996 by Massalombarda Colombani SpA against the Commission of the European Communities (Case T-216/96)

No C 94/18             EN                  Official Journal of the European Communities                                          22 . 3 . 97
in the Italy weighting of 81,7% , with retroactive effect as          were unjustifiable . In particular these were that specific
from 1 July 1995, pursuant to Council Regulation ( EC,                purchases and work had already been completed before
Euratom, ECSC ) No 2963/95 of 18 December 1995                        the date when the Commission received the request for
adjusting the remuneration and pensions of officials and              assistance, and the alleged forgery of the contract of
other servants of the European Communities and the                    purchase of a Tetra Pak packing machine with the purpose
weightings applied thereto ( 1 ).                                     of disguising the fact that the machine had already been
                                                                      installed in the establishment before the date on which the
The pleas and main arguments are analogous to those                   request for assistance was received .
relied on in Case T-2 12/96 Palermo v. Commission .
                                                                      The applicant alleges infringement of the second
0 ) OJ No L 310, 22 . 12 . 1995 , p. 1 .                              paragraph of Article 15 and Article 24 ( 2 ) of Council
                                                                      Regulation ( EEC ) No 4253/88 (4 ), breach of the principles
                                                                      of legitimate expectations, proportionality and legality,
                                                                      breach of essential procedural requirements and misuse of
                                                                      powers . It claims in particular that all the contested
                                                                      invoices bear a date not earlier than six months before the
Action brought on 23 December 1996 by Massalombarda                   start of the measure and are, therefore, eligible for
Colombani SpA against the Commission of the European                  subsidies. Only five of the invoices bear a date earlier than
                           Communities                                six months, that is equivalent to 2,9% of the amount of
                        ( Case T-2 16/96 )                            the aid . None the less, those invoices should be considered
                                                                      valid since it is not the expenditure but the date stamp
                           ( 97/C 94/39 )                             which is six months earlier. The applicant considers that
                                                                      the purchase of the Tetra Pak machine falls within the
                 (Language of the case: Italian)                      scope of 'Working Document' No VI/1216/b6.IT of the
                                                                      European Commission — Agriculture DG VI — F II 1 .
An action against the Commission of the European                      First of all, the machine was not acquired prior to the
Communities was brought before the Court of First                     start of the period of the operation, so that paragraph Bl ,
Instance of the European Communities on 23 December                   point 5 , of the 'Working Document' is not applicable. It is
1996 by Massalombarda Colombani SpA, whose                            true that the machine was installed at the establishment
registered office is at Massa Lombarda (Italy ), represented          prior to the period of the operation, although not under
by Marina Averani and Andrea Pisaneschi, of the Siena                 the purchase contract but under a hire contract. Secondly,
Bar, and by Paolo De Caterini, of the Rome Bar, with an               the hirer acquired the asset in question after the date on
address for service in Luxembourg at the Chambers of                  which financing was granted and before the subsequent
Charles Turk, 13B avenue Guillaume.                                   five years, as laid down in paragraph B.l , point 12 , of the
                                                                      'Working Document'.
The applicant claims that the Court should:
                                                                      The applicant points out that, in any event, the project in
— annul Commission Decision C(96 ) 2760 of 3 October                  this case has not been carried out in any way other than
     1996 ( ] ), pursuant to the second paragraph of                  that approved by the Commission. It therefore considers
    Article 173 of the EC Treaty and, accordingly, to                 that the principle of proportionality has been breached in
     render without effect all other measures based thereon,          that the whole of the assistance was withdrawn . The
    coordinated therewith or related thereto, as                      defendant should have dealt with partial irregularity by
     appropriate,                                                     adopting a decision reducing the aid . From that point of
                                                                      view, the adoption of a punitive penalty is contrary to
— order the defendant to pay the costs of the                         Community law which describes reduction as a 'measure',
    proceedings.                                                      which may thus be assimilated to a claim for recovery of
                                                                      overpayment, rather than as a 'penalty', which may be
Pleas in law and main arguments adduced in support:                   assimilated to a deterrent penalty. The Commission would
                                                                      be misusing its powers if its intention is to impose a
The main purpose of this action is the annulment of the               penalty.
Commission's decision to withdraw the assistance granted
to the applicant company by way of Decision C(90 ) 950/               (') Not published .
356 of 29 June 1990 (2 ), adopted in the context of Project           ( 2 ) Not published .
90.41.IT.109.0 under Council Regulation ( EEC ) No 355/               ( 3 ) Council Regulation (EEC) No 355/77 of 15 February 1977 on
77 (3 ) entitled ' Support to Horticulture and Fruitgrowing                 common measures to improve the conditions under which
in Massa Lombarda' ( Ravenna ), and demanding the                           agricultural products are processed and marketed ( OJ No L 51 ,
repayment thereof. That assistance had been requested in                    23 . 2 . 1977, p. 1 ).
                                                                      ( 4 ) Council Regulation ( EEC ) No 4253/88 of 19 December 1988
order to support the rationalization and technological                      laying down provisions for implementing Regulation (EEC)
updating of the fruit juice, semi-processed fruit and frozen                No 2052/88 as regards coordination of the activities of the
products departments, the general services and testing                      different Structural Funds between themselves and with the
laboratory of an establishment specializing in preserved                    operations of the European Investment Bank and the other
foods .                                                                     existing financial instruments ( OJ No L 374, 31 . 12 . 1988 ,
                                                                            p. 1 ).
In the contested decision, the Commission considered that
a number of facts which emerged during the inspection