7.3.2009

EN

Official Journal of the European Union

C 55/44

(Case T-584/08)

(2009/C 55/79)

Language of the case: Italian

Parties

Applicant: Cantiere Navale De Poli SpA (represented by: A. Abate, lawyer, R. Longanese Cattani, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—Annul the decision adopted by the European Commission on 21 October 2008 on State aid from Italy No C 20/2008 (ex N 62/2008).

—Order the Commission to pay the costs.

Pleas in law and main arguments

Council Regulation (EC) No 1177/2002 of 27 June 2002 (OJ 2002 L 172, p. 1) is based on Article 87(3)(e) EC and introduced a temporary defensive mechanism for shipbuilding, with the aim of restoring the market conditions distorted by the anti-competitive practices of the Korean shipyards. The expiry of the regulation, initially set for 31 March 2004, was subsequently postponed for one year, thus allowing Community shipyards until 31 March 2005 (the new expiry date of the regulation) to conclude further contracts for building certain types of cargo vessel. In support of those contracts, the regulation provides for aid of up to 6 % of the contract value. The applicant is party to five contracts for the construction of chemical vessels.

In order to finance all of the contracts during the period from 2002 to 2005, Italy notified two financing packages of EUR 10 million each. The Commission authorised the first by decision of 19 May 2004 but refused, by the contested decision, to authorise the second financing package. The Commission maintains that the additional financing constitutes ‘new aid’ within the meaning of Article 4 of Commission Regulation (EC) No 794/2004 of 21 April 2004 (OJ 2004 L 140, p. 1) in that it represents more than 20 % of the original budget of the scheme. The Commission further argues that the additional financing is incompatible with the common market in that the notification was made after 31 March 2005, the date on which Regulation No 1177/2002 expired.

The applicant submits that it was not possible for the Italian Government to prepare the financing for the contracts by 31 March 2005, since it was not in a position to have knowledge of all the contracts concerned: that being the last day of application of the regulation, the undertakings had the right to conclude contracts up to and on that day.

The applicant accordingly puts forward the following pleas in law in support of its action to contest the decision, in particular:

—infringement of Regulation No 1177/2002 in the light of the specific aims of the legislature in relation to Article 87(3)(e) EC;

—infringement of Article 4(2)(a) of Commission Regulation No 794/2004 in so far as the additional financing of EUR 10 million has been categorised as ‘new aid’;

—irrelevance of the recommendation of 20 June 2005 of the WTO Dispute Settlement Body in respect of the shipbuilding contracts lawfully concluded under Regulation No 1177/2002;

—failure to state reasons to substantiate the allegation that there is no legal basis for authorising the additional financing;

—breach of the principles of good administration, the right to a fair hearing, the rights of the defence, equal treatment, subsidiarity and proportionality.