22.7.2019

EN

Official Journal of the European Union

C 246/45

(Case T-335/19)

(2019/C 246/47)

Language of the case: Italian

Parties

Applicant: Cantieri del Mediterraneo S.p.A. (Naples, Italy) (represented by: F. Munari and L. Calzolari, lawyers)

Defendant: European Commission

Form of order sought

—The applicant claims that the Court should annul Article 1 of the contested decision under Article 263 et seq. TFEU.

Pleas in law and main arguments

This action has been brought against Commission Decision C(2018) 6037 final of 20 September 2018 on State aid SA.36112 (2016/C) (ex 2015/NN) implemented by Italy for the Port Authority of Naples and Cantieri del Mediterraneo S.p.A. (‘the contested decision’).

In support of the action, the applicant relies on nine pleas in law.

1.First plea in law, alleging infringement of Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union and failure to observe the principles of good administration, equal treatment, non-discrimination and the adversarial principle, failure to state reasons and infringement of Article 296 TFEU.

The applicant claims in this respect that:

—the contested decision was adopted in proceedings which did not safeguard the rights of defence of Cantieri del Mediterraneo S.p.A. (‘CAMED’), since, unlike the complainant, CAMED’s views were not heard at a hearing; and

—the contested decision was adopted at the end of proceedings in which equal treatment of the complainant and the beneficiary of the alleged aid (‘equality of arms’) was not ensured.

2.Second plea in law, alleging failure to observe the principles of good administration, legal certainty and effective judicial protection as a result of the unlawful revocation of the 2006 decision to take no further action in the proceedings concerning the same measure now classified by the contested decision as aid more than ten years later.

The applicant claims in this respect that:

—the contested decision should have declared that the revocation of the 2006 decision to take no further action in the proceedings concerning the same State measure was unlawful and should have found that that decision to take no further action precludes a finding that that measure constitutes State aid incompatible with the internal market; and

—the contested decision should have stated that the [2006] decision to take no further action presupposes that the Commission has determined that the measure at issue is lawful and, therefore, prevents the Commission from adopting a second decision that provides a different classification of the same subject matter more than ten years later.

3.Third plea in law, alleging infringement of Article 107 TFEU by reason of misinterpretation of the concept of State aid in so far as the contested decision classified the Port Authority of Naples (‘the PAN’) as an undertaking.

The applicant claims in this respect that:

—the contested decision should have stated that the PAN was not an ‘undertaking’ due to the fact that, under legge n. 84/1994 (Law No 84/1994), all port authorities are public authorities representing the State as regards Italian ports, which are entrusted with the performance of regulatory and administrative tasks in respect of all State property exclusively owned by the State solely in the public interest;

—the contested decision should have stated that the PAN does not engage in ‘economic activity’ since Law No 84/1994 prohibits it from offering goods or services on a market, which indeed does not exist; and

—the contested decision should have recognised the fiscal nature of the State fee in Italian law and its predetermination in legislation.

4.Fourth plea in law, alleging infringement of Article 345 TFEU and Articles 3, 7 and 121 TFEU, failure to observe multiple principles of EU law (equal treatment) and misuse of powers.

The applicant claims in this respect that:

—the contested decision should have stated that the possibility of carrying out maintenance is a prerogative of the right to property and that the Treaty safeguards the right of the Member States to maintain public ownership of assets and infrastructure, including port assets and infrastructure, and to ensure all entitled persons have access thereto;

—the contested decision cannot horizontally and unreasonably apply the same rules on the maintenance of port infrastructure or fees for the occupation of port areas to situations that are not comparable: the notable differences between the models for management of ports in the European Union mean that the construction of new infrastructure that is exclusively privately owned cannot be treated in the same way as the maintenance of inalienable State property owned by a Member State and managed by that Member State via the public authorities. Such an approach is at odds with the principle of equal treatment; and

—the contested decision cannot pursue the harmonisation of the various organisational models of ports in the European Union by means of the indiscriminate and unreasonable application of Article 107 TFEU.

5.Fifth plea in law, alleging infringement of Article 107 TFEU by reason of misinterpretation of the concept of ‘advantage’.

The applicant claims in this respect that:

—the contested decision should have stated that the measure does not reduce the PAN’s or CAMED’s costs, given that no undertaking normally bears the costs (let alone in their entirety) for the renovation of property that they do not (and cannot) own, since in Italy State property (in all the Italian ports) is owned exclusively by the State; and

—the contested decision should have stated that the State infrastructure was assigned to CAMED following a transparent and competitive public procedure after the PAN undertook to renovate the State property in question. In the procedure used for the assignment of that property to CAMED all potentially interested parties were given the opportunity to obtain that property; carrying out a public procedure ensures compliance with the market operator test, without the successful tenderer receiving any advantage.

6.Sixth plea in law, alleging infringement of Article 107 TFEU, failure to observe the principle of good administration, infringement of CAMED’s rights of defence and a defective statement of reasons on account of misinterpretation of selectivity.

The applicant claims in this respect that:

—the contested decision cannot classify the measure as ad hoc aid and must follow the ‘selectivity test’ for measures of general application;

the contested decision should have ruled that the measure was not selective as regards the PAN since all the other port authorities benefitted from identical public grants in order to maintain all State infrastructure within their sphere of territorial competence; and

the contested decision should have ruled that the measure was not selective as regards CAMED since all undertakings operating in an Italian port (not only in Naples and not only in the shipbuilding industry) are subject to the same rules and, therefore, pay the same fee as CAMED for infrastructure built or renovated with public funds.

Seventh plea in law, alleging infringement of Article 3 TEU and Article 7 TFEU, infringement of Articles 116 and 117 TFEU, misuse of powers, and lack of jurisdiction for the Commission to contest the fiscal nature and the amount of the State fees.

The applicant claims in this respect that the contested decision cannot challenge, on the basis of Article 107 TFEU, the amount of the State fee imposed on the concessionaires by the Italian State or claim that it does not correspond with market values, since, in Italian law, State fees are charges set by law that are not negotiated with individual State concessionaires, and tax systems fall within the exclusive jurisdiction of the Member States.

Eighth plea in law, alleging infringement of Article 107 TFEU since there is no distortion of competition or adverse effect on trade, and failure to state reasons.

The applicant claims in this respect that:

—the contested decision cannot assume the existence of those two criteria, which are both distinct and cumulative; and

—the contested decision should have ruled that those criteria were not fulfilled since the PAN does not operate on any market and does not have competitors and CAMED has gained no advantage from a measure which is only one of the countless implementing measures of a general plan which has affected all undertakings operating in every Italian port (including Naples), and not only those in the shipbuilding sector.

Ninth plea in law, alleging infringement of Article 107(2) and (3) TFEU.

The applicant claims in this respect that:

—the contested decision should have applied Article 107(2) TFEU since the maintenance made good damage caused by bombings during the second world war and by the earthquake of 1980; and

—the contested decision should have applied Article 107(3)(a) and (c) TFEU since (i) the port of Naples is in a disadvantaged region, and (ii) the public financing of the port infrastructure pursues an objective of common interest, particularly given that the amount of the financing is less than the notification threshold under the General Block Exemption Regulation (GBER).