29.3.2008

EN

Official Journal of the European Union

C 79/33

(Case T-53/08)

(2008/C 79/64)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

—annul Commission decision C(2007) 5400 final of 20 November 2007, notified on 21 November 2007, concerning State aid No C 36/A/2006 (ex NN 38/2006) which Italy paid to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche.

Pleas in law and main arguments

By the contested decision, the State aid paid by Italy to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche, and that granted but not yet paid to the same beneficiaries, in the form of favourable tariff conditions for the supply of electricity, were declared incompatible with the common market.

In support of its claims, the applicant relies on the following pleas:

(1)Infringement of Articles 87(1) and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since it did not confer an economic advantage. In fact the measure extending the preferential electricity tariffs to be applied to the companies in the proceedings, the assignee of Terni SpA, was owing as a supplement to the expropriation compensation granted previously to Terni SpA on account of the fact that legal provisions adopted subsequently involved a longer term in respect of the concession for the production of the expropriated energy.

(2)Infringement of Articles 87 and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since the aid was not granted through State resources. In fact the cost of the measure is borne by the other users of the energy supply service.

(3)Infringement of essential procedural requirements in relation to absence of preliminary enquiries and infringement of the rights of the defence. In its decision the Commission stated that the results of an economic study to assess all the sacrifices imposed on Terni in consequence of the expropriation and all the benefits obtained by that company by way of compensation were irrelevant because the suitability of the compensation mechanism can be assessed only ex ante, namely, at the time of the expropriation. The study was carried out in accordance with previous Commission guidance. The Commission, taking the view that in the abstract a study requested by it previously was irrelevant, should have carried out further preliminary enquiries, reopening the discussion concerning the methods of carrying out the study.