Official Journal of the European Union

C 267/38

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(Case C-319/09 P)

2009/C 267/69

Language of the case: Italian

Parties

Appellant: ACEA SpA (represented by: L. Radicati di Brozolo, A. Giardina and T. Ubaldi, avvocati)

Other parties to the proceedings: Commission of the Euroean Communities, ACSM Como SpA, AEM — Azienda Energetica Metropolitana Torino SpA

Form of order sought

—Set aside the judgment in Case T-297/02 (‘the judgment’) in so far as it omits to criticise the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption was applicable and upholds the general and abstract classification of the three-year exemption as State aid;

—set aside the judgment in so far as it fails to recognise that the three-year income tax exemption should be classified as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999; (1)

—set aside the judgment in so far as it finds that the order for recovery in Article 3 of the decision is lawful; (2)

—order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings.

Pleas in law and main arguments

The appellant relies on four grounds of appeal in support of its claims:

The first ground concerns an error of law in the application of Article 88 EC and Regulation (EC) No 659/1999 and a failure to state adequate reasons in the judgment under appeal, with reference to the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption provided for in Article 3(70) of Law No 549/1995 and Article 66(14) of Decree Law No 331/1993 was applicable. The Court of First Instance erred in law and failed to state adequate reasons in that, in the light of the particular circumstances of the case and the information available to the Commission, it failed to criticise the abstract and incomplete nature of the investigation and the conclusions reached by the Commission in the contested decision by reference to the various situations in which the tax exemption was applicable.

The second ground concerns the misapplication by the Court of First Instance of Article 87(1) EC and its failure to state adequate reasons in so far as it upheld the general and abstract classification of the three-year exemption as State aid. In particular, the Court of First Instance failed properly to verify the circumstances of the case and the assumptions on which the Commission based its decision to classify the measure in question as aid, which it was, in fact, required to do in accordance with its duty to carry out a comprehensive review. The Court of First Instance therefore confirmed the Commission’s decision without it having been demonstrated, at least by reference to certain sectors affected by the exemption, that two of the conditions laid down in Article 87(1) EC had been satisfied: that the measure in question was capable of distorting competition and adversely affecting trade between Member States.

The third ground relates to insufficient and contradictory reasoning and an error of law in the interpretation and application of Article 88(1) EC and Article 1(b)(v) of Regulation (EC) No 659/1999 on account of the fact that the three-year income tax exemption was classified as new aid. The Court of First Instance did not criticise the failure in the present case to classify the measure in question as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999, even though it is apparent from the context and the circumstances of the case, at least as regards some of the sectors affected by the three-year exemption, that the classification of the measure as new aid was not justified.

The fourth ground concerns an error of law and defective reasoning with regard to the lawfulness of the order for recovery in Article 3 of the contested decision. In view of the circumstances of the case, the Court of First Instance erred in finding that the order for recovery in the enacting terms of the decision could be applied in the broadest possible terms and unconditionally, even though the decision contained merely an abstract, general and incomplete assessment of the tax exemption.

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Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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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).

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