8.4.2006

EN

Official Journal of the European Union

C 86/44

(Case T-62/06)

(2006/C 86/83)

Language of the case: English

Parties

Applicant: Eurallumina SpA (Portoscuso, Italy) [represented by: L. Martin Alegi, R. Denton, M. Garcia, Solicitors]

Defendant: Commission of the European Communities

Form of order sought

—Either:

—Annul the entirety of the contested decision; or

—order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or

—annul the entirety of the contested decision and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered;

—Either:

—Annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina; or

—order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered; or

—annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina and order that the present exemption authorised by Council Decision 2001/224/EEC is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian State should not be considered as unlawful State aid, or at least not be recovered;

—In the alternative, modify Articles 5 and 6 of the contested decision insofar as they pertain to Euralluminia to the effect that pursuant to the present exemption until 31 December 2006, or at least until 31 December 2003, any sums foregone and to be foregone by the Italian State not be recovered; and

—order that the Commission pay all of the costs of the proceedings.

Pleas in law and main arguments

The applicant contests the decision of the Commission of 7 December 2005 addressed to the French Republic, Ireland and the Italian Republic relating to a series of Council Decisions authorising exemptions from excise duty on mineral oils used for alumina production in Gardanne, in the Shannon region and in Sardinia. In the contested decision, the Commission found that the exemptions constituted State aid.

In support of its application, the applicant submits that it had the right to expect that the present exemption, proposed by the Commission and unanimously approved by Council Decision 2001/224/EEC until the end of December 2006 is a legally valid Community act and that any act taken by the Italian State and the applicant to implement and rely on these measures would not lead to an unlawful result. According to the applicant, it had the right to expect that the monies foregone by the Italian State in accordance with the exemptions legally granted would not be recovered in any event. The Commission, by claiming that the application of the exemptions was a State aid recoverable from 3 February 2002 until 31 December 2003, has therefore allegedly violated the applicant's rights in respect of the principle of legitimate expectations, the principles of legal certainty, presumption of validity, ‘lex specialis’ and ‘effet utile’, as well as the principle of good administration.

Furthermore it is submitted that in deciding that the applicant's legitimate expectation came to an end on 2 February 2002, the Commission failed to take the appropriate period over which any investments were to be made and amortised relating to the applicant's plant into account. The Commission has, therefore, allegedly failed to state the reasons underlying the contested decision.

(1) 2001/224/EC: Council Decision of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ L 84, p. 23)