21.2.2009

EN

Official Journal of the European Union

C 44/52

(Case T-525/08)

(2009/C 44/92)

Language of the case: Italian

Parties

Applicant: Poste Italiane (Rome, Italy) (represented by A. Fratini, A. Sandulli and F. Filpo, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—Upholding of the action and as a result annulment of the Commission's decision of 16 July 2008 relating to aid C 42/2006 put into effect by Italy in order to provide a return on the current accounts of Poste Italiane with the State Treasury, not yet published in the Official Journal of the European Union;

—an order that the Commission should pay the costs.

Pleas in law and main arguments

This action is brought against the Commission's decision of 16 July 2008 relating to aid C 42/2006 put into effect by Italy in order to provide a return on the current accounts of Poste Italiane with the State Treasury. That decision declared incompatible with the common market, ordering its repayment, the system of State aid relating to the return on Poste Italiane current accounts with the Treasury, established by Law No 266 of 23 December 2005, and by the agreement between the Ministry of the Economy and Finance and Poste Italiane of 23 February 2006, which was put into effect by Italy, supposedly unlawfully, in breach of Article 88(3) of the Treaty.

In support of its claims the applicant invokes:

—infringement of Article 253 and of the first subparagraph of Article 87 of the EC Treaty, due to errors of fact and a manifest error of assessment, so far as concerns the Commission's application of the prudent borrower test, going so far as to establish a private borrower rate.

—infringement of the first subparagraph of Article 87 of the EC Treaty, due to a manifest error of assessment, with regard to the evaluation of alternative investments. It is stressed in this respect that, in the course of the administrative proceedings, the Italian authorities stated that the criterion set out in the agreement, governing the management of spare funds derived from the postal collection, penalises Poste with regard to the possibility of making profits from active management, and therefore does not confer any ‘advantage’ for the purposes of Article 87 of the Treaty.

Here, the applicant also refers to the relevance of the RBS study and of the opinions of financial brokers, and to the comparison with trading type management, with the management of funds from Poste Vita insurance policies, and with the cost of the Treasury's debt.

—Infringement of Article 253 and of the first subparagraph of Article 87 of the Treaty, due to failure to state reasons and a manifest error of assessment, and breach of the principles of the protection of legitimate expectations and legal certainty, in relation to the lack of any analysis of the element of advantage and of distortion of competition in the context of the universal service mission assumed by Poste.

—Breach of the general principles of the protection of legitimate expectations, legal certainty and proportionality in ordering the alleged aid to be repaid by the recipient.